ALABAMA

 

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*** CURRENT THROUGH 2000 REGULAR SESSION ***
*** ANNOTATIONS CURRENT THROUGH NOVEMBER 1, 2000 ***

TITLE 12. COURTS
CHAPTER 15. JUVENILE PROCEEDINGS
ARTICLE 5. RECORDS, FINGERPRINTS AND PHOTOGRAPHS

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Code of Ala. § 12-15-102 (2001)
§ 12-15-102. Fingerprints -- Photographs -- Blood or other samples


(a) Fingerprints of a child who has been charged with an act of delinquency shall be taken by the agency taking the child into custody. The prints may be retained in a local file and a copy shall be filed with the Alabama Bureau of Investigation.

(b) If latent fingerprints are found during the investigation of an offense and a law enforcement officer has reason to believe that they are those of the child in custody, the officer may fingerprint the child regardless of age or offense for purpose of immediate comparison with the latent fingerprints. The prints may be retained in a local file and copies shall be sent to the Alabama Bureau of Investigation.

(c) The court shall, by rule, require special precautions be taken to insure that the fingerprints will be maintained in a manner and under safeguards as to limit their use to inspection for comparison purposes by law enforcement officers or by staff of the depository only in the investigation of a crime.

(d) A child who is charged with an act of delinquency shall be photographed for criminal identification purposes. A child in custody for any other reason shall not be photographed for criminal identification purposes without the consent of the court. The photographs shall be retained in a local file with the same safeguards in place as for fingerprints.

(e) Blood or other samples necessary for
DNA testing may be taken for criminal identification purposes from a child who is charged with an act that would constitute a Class A or B felony if committed by an adult. The samples, if taken, shall be submitted for DNA testing and the DNA records shall be filed with the Alabama Department of Forensic Sciences. The court shall, by rule, require special precautions be taken to ensure that the DNA records will be maintained in a manner and under safeguards that will limit their use to inspection for identification purposes by law enforcement officers or by staff of the testing facility only in the investigation of a crime.

(f) Any person who willfully violates this section shall, upon conviction thereof, be guilty of a Class A misdemeanor within the jurisdiction of the juvenile court.

NOTES:
EFFECTIVE DATES. Acts 1996, No. 96-524, effective May 17, 1996.
Acts 1997, 1st Ex. Sess., No. 97-925, effective December 1, 1997.
Acts 1999, No. 99-433, effective September 1, 1999.

1996 AMENDMENTS. Deleted "14 or more years of age" following "child" in the first sentence of subsection (a); in subsection (b), substituted "the officer" for "he" in the first sentence, and deleted the former second and fourth sentence which related to fingerprint comparison results; deleted "14 or more years of age" following "child" near the beginning of subsection (c); in subsection (d), added the present first sentence, and in the second sentence inserted "for any other reason" and deleted "unless the case is transferred for criminal prosecution" following "consent of the court"; added subsection (e); deleted "provisions of" following "violates" in subsection (f); and made nonsubstantive changes.

1997, 1ST EX. SESS., AMENDMENTS. Rewrote subsection (a); added the second sentence in subsection (b); deleted "If the court finds that a child has committed a felony, the prints may be retained in a local file and copies sent to a central state depository; provided, that" preceding "The court shall" in subsection (c); in subdivision (e), divided the former sentence into the present first and second sentences by deleting "provided that" following "
DNA testing" in the present first sentence, and substituted "that will limit" for "as to limit" in the present second sentence; and made nonsubstantive changes.

1999 AMENDMENTS. Rewrote (a); deleted "to" following "precautions" in (c); in (d), in the first sentence, substituted "charged with an act of delinquency shall" for "referred to court for an alleged delinquent act may" and added the last sentence; rewrote (e); and in (f), inserted "Class A" and added "within the jurisdiction of the juvenile court."

RELATED STATUTES. Acts 1999, No. 99-433, § 1: "This act shall be known as and may be cited as the "Juvenile Information Act.'"

CROSS REFERENCES. --This law is referred to in: § 12-15-31.

CASE NOTES

CITED IN Woodson v. State, 405 So. 2d 967 (Ala. Crim. App. 1981).


TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-20 (2001)
§ 36-18-20. Legislative intent


The Legislature hereby finds, determines and declares:

(a) That the tragic incidence of violent crime in our society is growing at an alarming rate, and that these offenses often times are committed by repeat or habitual offenders against our most innocent and defenseless citizens.

(b) That there is a critical and urgent need to provide law enforcement officers and agencies with the latest scientific technology available for the purpose of identifying, apprehending, arresting, and convicting those violent offenders.

(c) That
DNA testing, profiling, and analysis allows a more certain and rapid identification of such offenders as well as the exoneration of those wrongfully suspected or accused.

(d) That genetic identification technology through
DNA testing is generally accepted by the relevant scientific community.

(e) That the procedures and techniques employing the underlying theory of
DNA identification is capable of producing reliable results and are generally accepted in the relevant scientific community.

(f) That genetic identification established through
DNA testing and analysis should be admissible as a matter of evidence in all courts of this state and that juries, both civil and criminal, should be responsible for assessing the weight, if any, to be given to expert testimony or evidence.

(g) That the creation and establishment of a statewide
DNA database is the most reasonable and certain method or means to rapidly identify repeat or habitually dangerous criminals.

(h) That the Alabama Department of Forensic Sciences should be authorized and empowered to analyze, type and record any and all genetic markers contained in or derived from
DNA and to create a statewide DNA database system for collection, storage and maintenance of genetic identification information as the same may pertain to the identification of criminal suspects.

(i) That because of the nature of genetic identification certain occasions may arise when genetic information may serve an array of humanitarian purposes, including, but not limited to, the identification of human remains from natural or mass disasters or the identification of missing, deceased or unidentified persons.

(j) That through the development of a population statistical database which does not include therein individual personal identification information an important research mechanism is obtained for the causation, detection and prevention of disease.

(k) That genetic identification is a rapidly expanding technology and the Director of the Alabama Department of Forensic Sciences should be authorized and empowered to adopt reasonable rules and regulations to support identification research and the development of standard protocols for forensic
DNA analysis or tests and DNA quality control.

(
l ) That such needs are and ought to be intimately affected with the public interest.

The provisions of this article are to be liberally construed so as to accomplish these purposes and to promote the same which are hereby declared to be the public policy of this state.

NOTES:
ALABAMA LAW REVIEW. --Survey of 1997-98 Developments in Alabama case law. 50 Ala. L. Rev. 267 (1998).

CASE NOTES
Effect of sentencing
Evidence

Generally

EFFECT OF SENTENCING. The collection of
DNA data from a convicted felon is a collateral effect of his sentence and not part of the sentence of which he must be apprised before pleading guilty; by not raising at trial his argument that his plea was involuntary because he was not informed of the possible maximum and minimum sentences, the defendant waived review on appeal. Danzey v. State, 703 So. 2d 1019 (Ala. Crim. App. 1997).

EVIDENCE.

GENERALLY.
Although the State laid a foundation for the admission of the
DNA matching evidence, that foundation did not cover population frequency statistics, and the testimony of the State's expert forensic serologist failed to establish the necessary foundation for admitting the DNA population frequency statistics where she failed to explain adequately the database from which she made the population frequency statistics calculations and failed to properly explain her methods for calculating the results. Turner v. State, 746 So. 2d 352 (Ala. Crim. App. 1996).



TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-21 (2001)
§ 36-18-21. Definitions


As used in this article, the following words, phrases or terms shall have the following meanings, respectively unless the context thereof clearly indicates otherwise:

(a) Director. Shall mean the Director of the Alabama Department of Forensic Sciences.

(b) Person. A human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality.

(c)
DNA. Deoxyribonucleic acid.

(d)
DNA sample. Any biological sample containing DNA.

(e)
DNA record. An objective form of scientific analysis or tests which contain genetic identification characteristics of DNA samples.

(f)
DNA population frequency. The frequency of occurrence of a particular DNA trait or fragment in a particular population.

(g)
DNA database. That system established by the Director of the Alabama Department of Forensic Sciences for the purposes of collecting, storing and maintaining DNA records.

(h)
DNA population statistical database. That system established by the Director of the Alabama Department of Forensic Sciences for collecting, storing, and maintaining genetic information relating to DNA population frequencies.

(i) FBI. The Federal Bureau of Investigation.

(j) CODIS. The National
DNA Identification Index System established by the FBI.

(k) Incarceration facility. Any place of lawful involuntary confinement, partial or total, limited or unlimited, for criminals convicted pursuant to Alabama law, including but not limited to:

1. Prisons, jails or similar facilities.

2. Work release centers, or similar facilities.

3. Farms, ranches, halfway houses or similar facilities.

4. Drug or alcohol abuse treatment facilities.

5. Mental hospitals or other mental health facilities.

6. Parole or probation facilities or similar facilities.

(
l ) Custodian. Any person who supervises, directs, or controls, by duty, assignment, appointment, or election any incarceration facility, including but not limited to:

1. The Commissioner of the Alabama Department of Corrections.

2. Any warden or similar officer employed by the State of Alabama or any county or municipality thereof.

3. Any director, supervisor, or similar officer of any work release center, ranch, farm, halfway house or similar facility operated, in whole or in part, or funded, in whole or in part, from state, county, or municipal funds.

4. Any director, supervisor, or similar officer of any drug or alcohol abuse treatment center or similar facility receiving criminals convicted or sentenced thereto pursuant to Alabama law.

5. Sheriffs.

6. Chiefs of police.

7. Probation and parole officers.

TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-22 (2001)
§ 36-18-22. Powers


The director is hereby authorized and empowered to:

(1) Collect, accept, analyze, test and store
DNA samples.

(2) Create, maintain or exchange
DNA records.

(3) Analyze, type and record any and all genetic markers contained in or derived from
DNA and to provide for the collection, storage and maintenance of genetic identification information as the same may pertain to the identification or exclusion of criminal suspects.

NOTES:
CROSS REFERENCES. --Additional powers of director, §§ 36-18-34 and 36-18-36.



TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-23 (2001)
§ 36-18-23. FBI procedures; compatibility


The director shall ensure that forensic
DNA testing conducted pursuant to the provisions of this article shall be conducted in a manner that is compatible with procedures specified by the FBI.

TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-24 (2001)
§ 36-18-24.
DNA database; creation; purpose


The director is hereby authorized and empowered to create and establish a
DNA database for the purposes of:

(a) Assisting federal, state, county, municipal, or local criminal justice and law enforcement officers or agencies in the putative identification, detection, or exclusion of persons who are the subjects of investigations or prosecutions of sex related crimes, other violent crimes or other crimes in which biological evidence is received or recovered.

(b) Supporting identification research and protocol development of
DNA forensic methods.

(c) Creating and maintaining
DNA quality control standards.

(d) Assisting in the recovery or identification of human remains from natural or mass disasters.

(e) Assisting in other humanitarian purposes including the identification of missing, deceased or unidentified persons.

The
DNA database shall contain DNA records which the director shall deem necessary for the implementation of this article, and also shall contain DNA records of:

(a) Persons convicted after May 6, 1994 for a felony offense.

(b) Persons confined as of May 6, 1994 under a sentence of imprisonment or involuntary incarceration or confinement in a prison, jail, or other incarceration facility as a result of any felony conviction.

(c) Persons convicted after May 6, 1994 of any offense contained in Chapter 6, Title 13A, or as the same may be hereafter amended.

(d) Persons convicted after May 6, 1994, of any attempt, solicitation, or conspiracy to commit any offense contained in Chapter 6, Title 13A, or as the same may be hereafter amended.

(e) Persons convicted or sentenced after May 6, 1994, for any of the offenses enumerated above and serving a sentence of probation, suspended sentence, or other sentence or judgment not requiring immediate incarceration.

NOTES:
CROSS REFERENCES. --This law is referred to in: § 36-18-25.

ALR. --Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.

CASE NOTES
Apprisal before sentencing
Procedure /- Trial
Cited

APPRISAL BEFORE SENTENCING. The collection of
DNA data from a convicted felon is a collateral effect of his sentence and not part of the sentence of which he must be apprised before pleading guilty; by not raising at trial his argument that his plea was involuntary because he was not informed of the possible maximum and minimum sentences, the defendant waived review on appeal. Danzey v. State, 703 So. 2d 1019 (Ala. Crim. App. 1997).

PROCEDURE -- TRIAL.
When a defendant alleges that the trial court erred in not conducting a hearing outside the jury's presence to determine the admissibility of
DNA evidence, it is incumbent upon the defendant to have first requested that such a hearing be conducted. Simmons v. State, -- So. 2d -- (Ala. Crim. App. 1999), 1999 Ala. Crim. App. LEXIS 222.
Remand was required because the court was unable to determine whether the State satisfied the reliability test as to the theory and technique used by the Department of Forensic Sciences with regard to the admissibility of
DNA population frequency statistical analysis evidence. Simmons v. State, -- So. 2d -- (Ala. Crim. App. 1999), 1999 Ala. Crim. App. LEXIS 222.

CITED IN Bennett v. State, 754 So. 2d 637 (Ala. Crim. App. 1999).


TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-25 (2001)
§ 36-18-25. Collection of
DNA samples; persons convicted


(a) All persons convicted of a criminal offense as set out in Section 36-18-24 shall, when requested by the director submit to the taking of a
DNA sample or samples as may be specified by the director, provided, however, the director shall promulgate such rules and regulations as may be necessary for the purposes of ensuring that DNA samples are collected in a medically approved manner.

(b) As of May 6, 1994, all persons serving any sentence of probation for any of the offenses set out in Section 36-18-24 shall, when requested by the director, submit to the taking of a
DNA sample or samples as specified by the director. Upon the refusal of any such person to so submit the sentencing court shall order such submission as a mandatory condition of probation.

(c) As of May 6, 1994, all persons convicted of any of the offenses set out in Section 36-18-24 shall be ordered to submit to the taking of a
DNA sample or samples as specified by the director as a mandatory condition of any term of probation or suspended sentence which may be imposed by the sentencing court.

(d) As of May 6, 1994, all persons convicted for any offense set out in Section 36-18-24 and under any sentence of confinement to any incarceration facility, shall, when requested by the director, submit to the taking of a
DNA sample or samples as specified by the director. Upon the refusal of any such person to so submit, the custodian of the incarceration facility shall require such submission as a mandatory condition of any temporary, partial or limited release, including, but not limited to, work release, furlough, or other incentive release.

(e) As of May 6, 1994, all persons convicted of any of the offenses set out in Section 36-18-24, shall be ordered by the sentencing court to submit to the taking of a
DNA sample or samples as may be specified by the director as part of the sentence to be imposed.

(f) As of May 6, 1994, all persons convicted for any offense set out in Section 36-18-24 who may be eligible for consideration by the Alabama Board of Pardons and Paroles for either a pardon or parole shall be ordered by the Alabama Board of Pardons and Paroles to submit to the taking of a
DNA sample or samples as may be specified by the director, as a mandatory condition of the pardon or parole.

CASE NOTES
General comment
Constitutionality
Cited

GENERAL COMMENT. The language in this section did not provide defendant with a right to refuse to submit to
DNA testing; the statute clearly makes it mandatory for all felon inmates to submit to DNA testing before their release, and the language referring to a refusal does not impart a right, but is rather "a timing mechanism" for the submission of the sample. Hammonds v. State, -- So. 2d -- (Ala. Crim. App. 1999), 1999 Ala. Crim. App. LEXIS 217.

CONSTITUTIONALITY.
The Alabama
DNA collection statute requirement that all persons convicted of a felony or serving a sentence of imprisonment as a result of any felony conviction, after May 6, 1994, submit a blood sample for DNA processing was not a violation of defendant's Fourth Amendment right against an unreasonable search and seizure. Hammonds v. State, -- So. 2d -- (Ala. Crim. App. 1999), 1999 Ala. Crim. App. LEXIS 217.
There were no Fourth Amendment violations in the taking of defendant's blood sample contrary to ADFS protocol regulations because those regulations were merely promulgated to assist the Department of Corrections and the Department of Forensic Sciences in the orderly and medically approved collection and processing of numerous blood samples from inmates. Hammonds v. State, -- So. 2d -- (Ala. Crim. App. 1999), 1999 Ala. Crim. App. LEXIS 217.

CITED IN Bennett v. State, 754 So. 2d 637 (Ala. Crim. App. 1999).


TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-26 (2001)
§ 36-18-26. Expungement of
DNA records


Upon the reversal of conviction, the director shall be authorized and empowered to expunge
DNA records upon request of the person from whom the sample was taken.


TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-27 (2001)
§ 36-18-27. Confidentiality of records


DNA records collected and maintained for the purpose of the identification of criminal suspects or offenders shall be disclosed only:

(a) To criminal justice agencies for law enforcement identification purposes.

(b) In judicial proceedings, if otherwise admissible.

(c) For criminal defense purposes, to a defendant, who shall have access to samples and analyses performed in connection with the case in which such defendant is charged.



TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-28 (2001)
§ 36-18-28. Confidentiality of records; disclosure; penalty


(a) A person who by virtue of employment or official position has possession of, or access to, individually identifiable
DNA information indexed or otherwise contained in the DNA database system of the Alabama Department of Forensic Sciences and who knowingly and willfully discloses such information in any manner to any person or agency not entitled to receive it shall be guilty of a Class C felony.

(b) A person who without authorization knowingly and willfully obtains
DNA samples or any individual identifiable DNA information indexed or contained in the DNA database system of the Alabama Department of Forensic Sciences shall be guilty of a Class C felony.

(c) A person who shall conspire to commit a violation of subsections (a) or (b) shall be guilty of a Class C felony.

TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-29 (2001)
§ 36-18-29. Records; falsification; destruction; unlawful possession, etc


A person who shall knowingly make any false entry or falsely alter any record of the Alabama Department of Forensic Sciences; or who shall intentionally destroy, mutilate, conceal, remove or otherwise impair the verity or availability of records of the Alabama Department of Forensic Sciences with the knowledge of a lack of authority to do so; or who shall possess a record of the Alabama Department of Forensic Sciences and refuse to deliver up such record upon proper request of a person lawfully entitled to receive the same shall be guilty of a Class B felony.



 

TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-31 (2001)
§ 36-18-31.
DNA population statistical database; creation; purposes


(a) The director is hereby authorized and empowered to create and establish a
DNA population statistical database which shall not include therein individually identifiable information.

(b) The
DNA population statistical database may be utilized for the following purposes:

1. To provide data relative to the causation, detection and prevention of disease or disability.

2. To support identification research and protocol development of
DNA forensic methods, or to create and maintain DNA quality control standards.

3. To assist in other humanitarian endeavors including, but not limited to, educational research or medical research or development.

NOTES:
ALR. --Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.


TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-32 (2001)
§ 36-18-32.
DNA database fund


(a) There is hereby established a special fund to be known as the Alabama
DNA Database Fund.

(b) The fund shall be placed under the management or administration of the Director of the Alabama Department of Forensic Sciences for the exclusive purposes of implementing the provisions of this article.

(c) The fund shall consist of all moneys received by the director pursuant to the provisions of this section.

(d) The director shall have control of those funds as shall not be inconsistent with the provisions of this article and with the laws of the State of Alabama.

(e) Monies deposited in the Alabama
DNA Database Fund may be expended by the Director of the Alabama Department of Forensic Sciences in accordance with the provisions of this article. The investment of monies in the fund by the State Treasurer shall remain in the Alabama DNA Database Fund. At the end of each fiscal year any unexpended or unencumbered monies shall remain in the fund. However, no funds shall be withdrawn or expended except as budgeted and allotted according to law and only in the amounts authorized by the Legislature in the general appropriation bill or other appropriation bills.

(f) Neither the director nor any member of the director's staff nor any employee of the Alabama Department of Forensic Sciences shall have any financial interest in any such investments or receive any reward, thing of value, or commission in respect thereto.

(g) It shall be the duty of the director to keep detailed permanent records of all expenditures and disbursements from such fund or account.

(h) In all municipal, district and circuit court cases, both criminal and civil, in bond forfeiture proceedings, upon initiation of attachment, garnishment or execution proceedings and upon the issuance of any alias or capias warrant of arrest, a fee in the amount of $2.00 shall be assessed and collected. The fee shall be collected by the court clerk and remitted to the Alabama
DNA Database Fund. Provided, however, that there shall be no additional fees imposed for violations relating to parking tickets or small claims cases.

The amount of the fees shall be remitted by the person or authority collecting the same to the director on the 10th day of each month next succeeding that in which the fee is paid. It shall be the duty of the clerk or other authority collecting those court fees to keep accurate records of the amounts due the director for the benefit of the fund established under this section.

TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-34 (2001)
§ 36-18-34. Implementation of article; powers of director


(a) For the purposes of performing any of the functions, duties, or responsibilities of the Alabama Department of Forensic Sciences or for the purposes of implementing any provision of this article or to defray the costs thereof, the director may receive, accept, expend, or utilize any and all money or property of whatever nature, kind or description which may now or hereafter be available for such purposes.

(b) For the purposes of implementing any of the provisions of this article, or to defray the costs thereof, the director may award loans or grants of money, equipment or personnel to public or private non-profit corporations, associations, agencies of the State of Alabama or any political subdivision thereof, or to state, county, or municipal law enforcement or prosecutorial or judicial agencies upon such terms and conditions as the director may deem necessary.

(c) The director may enter into agreements with the United States of America, the State of Alabama, any municipality, or any of the respective agencies, institutions, departments, authorities, agents or employees of the above in order to implement the provisions of this article or to defray the costs thereof.

(d) The director may enter into contracts with private persons in order to implement any provision of this article or to defray the costs thereof, provided however, any such agreement or contract shall be approved by the Governor or the Attorney General of the State of Alabama.

(e) The director may receive, accept, utilize, expend, and administer any grants, gifts, donations, reimbursements, or fees from any public, quasi-public, or private source.

NOTES:
CROSS REFERENCES. --Powers of director, generally, § 36-18-22.

 

 

TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-35 (2001)
§ 36-18-35. Bribes -- Conflicts of interest


(a) Any person who confers, offers, or agrees to confer anything of value upon any director, agent, or employee of the Alabama Department of Forensic Sciences with the intent that such director's, agent's, or employee's vote, opinion, judgment, or exercise of discretion or other official action will thereby be influenced, shall be guilty of a Class B felony.

(b) Any director, agent, or employee of the Alabama Department of Forensic Sciences who shall solicit, accept, or agree to accept anything of value upon any agreement or understanding that such director's, agent's, or employee's vote, opinion, judgment, or exercise of discretion or other action as such director, agent, or employee will thereby be influenced, shall be guilty of a Class B felony.

(c) A director, agent, or employee of the Alabama Department of Forensic Sciences commits the crime of failing to disclose a conflict of interest if the director, agent, or employee exercises any discretionary function in connection with any contract, purchase, payment, or other pecuniary transaction pertaining to the Alabama Department of Forensic Sciences without advance public disclosure of a known potential conflicting interest in the transaction.

(1) A "potential conflicting interest" exists, but is not limited to:

A. When a director, agent, or employee of the Alabama Department of Forensic Sciences is a director, president, general manager, or similar executive officer, agent or employee of any non-governmental entity participating in such transaction.

B. When a director, agent, or employee of the Alabama Department of Forensic Sciences owns directly or indirectly a substantial portion of any non-governmental entity participating in that transaction.

C. When a director, agent or employee of the Alabama Department of Forensic Sciences endeavors to obtain directly or indirectly any pecuniary or other financial interest in, or as a result of, the pecuniary transaction.

(2) Public disclosure shall mean a public announcement and written notification to the Attorney General of the State of Alabama.

(3) Failing to disclose a conflict of interest shall be a Class C felony.


TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-37 (2001)
§ 36-18-37. Civil liability


(a) Neither the Director of the Alabama Department of Forensic Sciences nor any person designated by the director for the purposes of taking, collecting, storing, analyzing or testing
DNA samples shall incur any civil liability when such taking, collecting, storing, analyzing or testing is performed according to rules or regulations promulgated or adopted by the director, and

(b) The alleged damage or injury was not caused by willful or wanton conduct by the director or the director's designated person.



 

TITLE 36. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 18. DIRECTOR OF FORENSIC SCIENCES
ARTICLE 2.
DNA DATABASE SYSTEM

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Code of Ala. § 36-18-36 (2001)
§ 36-18-36. Corporate powers of director -- Powers of department


For the purposes of implementing the provisions of this article or to defray the costs thereof, the Director of the Alabama Department of Forensic Sciences shall have all the powers and privileges of a corporation and all of his or her business shall be transacted in the name of the Alabama Department of Forensic Sciences. In addition to any other powers and duties specified elsewhere in this article, the Alabama Department of Forensic Sciences shall have power to:

(a) Regulate its own procedures except as otherwise provided in this article.

(b) Define any term not defined in this section.

(c) Prescribe forms necessary to carry out the purposes of this article.

(d) Take judicial notice of general, technical and scientific facts within the director's specialized knowledge.

(e) Collect all moneys provided by this article to be collected by the director.

(f) Provide for and maintain all necessary administrative facilities, personnel, equipment, supplies, materials and other items which the director deems necessary for the proper dispatch of his or her duties, responsibilities, or functions pursuant to the provisions of this article.

(g) Provide for payment of all administrative salaries, fees and expenses.

(h) Cause moneys to be invested and investments sold or exchanged and the proceeds and income collected.

(i) Adopt such rules and regulations as may be necessary or desirable to expedite the administration of the affairs of the Department of Forensic Sciences not inconsistent with the provisions of this article.

(j) Provide descriptive literature respecting the Alabama Department of Forensic Sciences and its duties.

(k) Employ such specified or technical personnel as shall be necessary or desirable to enable the director to carry on his or her functions in a proper and sound manner.

(
l ) Receive by gift, grant, devise or bequest any moneys or properties of any nature or description.

(m) Accept and administer loans, grants and donations from the federal government, its agencies, and all other sources, public and private.

(n) Collect, develop and maintain statistical information, records and reports as the director may determine relevant or necessary to carry out the powers, duties, or functions of the director pursuant to the provisions of this article. All agencies and institutions of this state, the political subdivisions thereof as well as agencies or institutions of municipalities shall, upon written request by the director furnish to the director such statistical information or data as the director shall deem necessary to fulfill his or her duties and responsibilities under the provisions of this article.

(o) Carry out any powers expressly granted elsewhere in this article to the director; and

(p) All other powers necessary for the proper administration of the provisions of this article.

NOTES:
CROSS REFERENCES. --Powers of director, generally, § 36-18-22.

 

 

 

 


ALASKA

TITLE 44. STATE GOVERNMENT
CHAPTER 41. DEPARTMENT OF PUBLIC SAFETY

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Alaska Stat. § 44.41.035 (2001)
Sec. 44.41.035.
DNA identification system


(a) To support criminal justice services in this state, the Department of Public Safety shall establish a deoxyribonucleic acid (
DNA) identification registration system.

(b) The Department of Public Safety shall collect for inclusion into the
DNA registration system a blood sample, oral sample, or both, from (1) a person convicted of a crime against a person, and (2) a minor 16 years of age or older, adjudicated as a delinquent for an act that would be a crime against a person if committed by an adult. The DNA identification registration system consists of the blood or oral samples drawn under this section, any DNA or other blood grouping tests done on those samples, and the identification data related to the samples or tests. Blood samples and oral samples from persons not subject to testing under this section, and test or identification data related to those samples, may not be entered into, or made a part of, the DNA identification registration system.

(c) The Department of Public Safety may provide

(1)
DNA analysis services to law enforcement agencies throughout the state; and

(2) assistance to law enforcement officials and prosecutors in the preparation and utilization of
DNA evidence for presentation in court.

(d) Except as provided in (e) of this section, a local law enforcement agency may not establish or operate a
DNA identification registration system unless

(1) the equipment and the
DNA typing method of the local system are compatible with that of the state system under (a) of this section;

(2) the local system is equipped to receive and answer inquiries from the department's
DNA identification registration system and transmit data to the department's DNA identification registration system; and

(3) procedure and rules for the collection, analysis, storage, expungement, and use of
DNA identification data do not conflict with this section and procedures and rules applicable to the department's DNA identification registration system.

(e) Nothing in (d) of this section prohibits a local law enforcement agency from performing
DNA identification analysis in individual cases to assist law enforcement officials and prosecutors in the preparation and use of DNA evidence for presentation in court.

(f) The
DNA identification registration system is confidential, is not a public record under AS 40.25.110 -- 40.25.140, and may be used only for

(1) providing
DNA or other blood grouping tests for identification analysis;

(2) law enforcement purposes including criminal investigations and prosecutions;

(3) statistical blind analysis; or

(4) improving the operation of the system.

(g) A person from whom a sample has been collected under this section may inspect and obtain a copy of the identification data regarding the person contained within the
DNA identification registration system.

(h) The Department of Public Safety shall adopt reasonable procedures

(1) for the collection, analysis, storage, expungement, and use of the
DNA identification registration system; and

(2) to protect the
DNA identification registration system established under this section from unauthorized access and from accidental or deliberate damage by theft, sabotage, fire, flood, wind, or power failure.

(i) The Department of Public Safety shall, upon receipt of a court order, destroy the material in the system relating to a person. The court shall issue the order if it determines that

(1) the conviction or adjudication that subjected the person to having a sample taken under this section is reversed; and

(2) the person

(A) is not retried or readjudicated for the crime; or

(B) after retrial, is acquitted of the crime or after readjudication for the crime is not found to be a delinquent.

(j) In this section,

(1) "crime against a person" means a felony offense, or a felony attempt to commit an offense, under AS 11.41, other than AS 11.41.320, or under AS 11.46.400;

(2) "oral sample" means a sample taken from the mouth of a person that consists of saliva or tissue, or both, as is determined by the Department of Public Safety to be necessary to obtain an accurate
DNA identification and to otherwise achieve the purposes of this section.

HISTORY: (§ 2 ch 10 SLA 1995; am § 5 ch 44 SLA 2000)

NOTES:
REVISOR'S NOTES. --In 2000, "AS 40.25.110 -- 40.25.140" was substituted for "AS 09.25.110 -- 09.25.140" to reflect the 2000 renumbering of AS 09.25.110 -- 09.25.140.

EFFECT OF AMENDMENTS. --The 2000 amendment, effective May 12, 2000, in subsection (i) inserted ", upon receipt of a court order," and at the end of the introductory language added: "The court shall issue the order if it determines that."

EFFECTIVE DATES. --Section 4, ch. 10, SLA 1995 makes this section effective January 1, 1996.

EDITOR'S NOTES. --Section 3, ch. 10, SLA 1995 provides that this section "applies to all convictions [for a crime against a person] occurring on or after January 1, 1996."

USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.

ALASKA ADVANCE LEGISLATIVE SERVICE
STATENET
Copyright © 2000 by Information for Public Affairs, Inc.

ALASKA 21ST LEGISLATURE -- SECOND SESSION

CHAPTER NO. 44

HOUSE BILL 294

1999 AK. ALS 44; 1999 AK. Sess. Laws 44; 1999 AK. Ch. 44; 1999 AK. HB 294
SYNOPSIS: AN ACT "An Act Relating to violations of an order to submit to deoxyribonucleic acid (DNA) testing, to court orders and conditions of parole to collect samples for DNA testing, to removal of material from the DNA identification registration system; and providing for an effective date."

NOTICE:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]
[D> Text within these symbols is deleted <D]

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To view the next section, type .np* TRANSMIT.
To view a specific section, transmit p* and the section number. e.g. p*1
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:

[*1] Section 1. AS 11.56.760(a) is amended to read:

(a) A person commits the crime of violating an order to submit to
DNA testing if, when requested by a health care professional acting on behalf of the state to provide a blood sample, oral sample, or both, [A> OR WHEN REQUESTED BY A JUVENILE OR ADULT CORRECTIONAL, PROBATION, OR PAROLE OFFICER OR A PEACE OFFICER TO PROVIDE AN ORAL SAMPLE, <A] the person refuses to provide the sample or samples and the person has been

(1) ordered to submit to
DNA testing as part of a sentence imposed under AS 12.55.015; or

(2) convicted of an offense that requires
DNA testing under the provisions of AS 44.41.035.

[*2] Sec. 2. AS 12.55.015(h) is amended to read:

(h) In addition to penalties authorized by this section, the court shall order a person convicted of an offense requiring the state to collect a blood sample, oral sample, or both, for the deoxyribonucleic acid identification registration system under AS 44.41.035 to submit to the collection of [A> (1) <A] the sample or samples when requested by a health care professional acting on behalf of the state to provide the sample or samples [A> ; OR <A]

[A> (2) AN ORAL SAMPLE WHEN REQUESTED BY A JUVENILE OR ADULT CORRECTIONAL, PROBATION, OR PAROLE OFFICER, OR A PEACE OFFICER <A] .

[*3] Sec. 3. AS 12.55.100(d) is amended to read:

(d) If the court orders probation for a defendant convicted of an offense requiring the state to collect a blood sample, oral sample, or both, from the defendant for the deoxyribonucleic acid identification registration system under AS 44.41.035, the court shall order the defendant, as a condition of probation, to submit to the collection of [A> (1) <A] the sample or samples when requested by a health care professional acting on behalf of the state to provide the sample or samples [A> ; OR <A]

[A> (2) AN ORAL SAMPLE WHEN REQUESTED BY A JUVENILE OR ADULT CORRECTIONAL, PROBATION, OR PAROLE OFFICER, OR A PEACE OFFICER <A] .

[*4] Sec. 4. AS 33.16.150(a)(12) is amended to read:

(12) shall provide a blood sample, an oral sample, or both, when requested by a health care professional acting on behalf of the state to provide the sample or samples [A> , OR AN ORAL SAMPLE WHEN REQUESTED BY A JUVENILE OR ADULT CORRECTIONAL, PROBATION, OR PAROLE OFFICER, OR A PEACE OFFICER, <A] if the prisoner is being released after a conviction of an offense requiring the state to collect the sample or samples for the deoxyribonucleic acid identification system under AS 44.41.035.

[*5] Sec. 5. AS 44.41.035(i) is amended to read:

(i) The Department of Public Safety shall [A> , UPON RECEIPT OF A COURT ORDER, <A] destroy the material in the system relating to a person [A> . THE COURT SHALL ISSUE THE ORDER IF IT DETERMINES THAT <A] [D> IF <D]

(1) the conviction or adjudication that subjected the person to having a sample taken under this section is reversed; and

(2) the person

(A) is not retried or readjudicated for the crime; or

(B) after retrial, is acquitted of the crime or after readjudication for the crime is not found to be a delinquent.

[*6] Sec. 6. This Act takes effect immediately under AS 01.10.070(c).

HISTORY:
Approved by the Governor on May 11, 2000

SPONSOR:
Committee on Rules


ARIZONA

 

TITLE 13. CRIMINAL CODE
CHAPTER 38. MISCELLANEOUS
ARTICLE 29. POST-CONVICTION RELIEF

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A.R.S. § 13-4240 (2000)
§ 13-4240. Postconviction deoxyribonucleic acid testing


A. At any time, a person who was convicted of and sentenced for a felony offense and who meets the requirements of this section may request the forensic deoxyribonucleic acid testing of any evidence that is in the possession or control of the court or the state, that is related to the investigation or prosecution that resulted in the judgment of conviction, and that may contain biological evidence.

B. After notice to the prosecutor and an opportunity to respond, the court shall order deoxyribonucleic acid testing if the court finds that all of the following apply:

1. A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through deoxyribonucleic acid testing.

2. The evidence is still in existence and is in a condition that allows deoxyribonucleic acid testing to be conducted.

3. The evidence was not previously subjected to deoxyribonucleic acid testing or was not subjected to the testing that is now requested and that may resolve an issue not previously resolved by the previous testing.

C. After notice to the prosecutor and an opportunity to respond, the court may order deoxyribonucleic acid testing if the court finds that all of the following apply:

1. A reasonable probability exists that either:

(a) The petitioner's verdict or sentence would have been more favorable if the results of deoxyribonucleic acid testing had been available at the trial leading to the judgment of conviction.

(b) Deoxyribonucleic acid testing will produce exculpatory evidence.

2. The evidence is still in existence and is in a condition that allows deoxyribonucleic acid testing to be conducted.

3. The evidence was not previously subjected to deoxyribonucleic acid testing or was not subjected to the testing that is now requested and that may resolve an issue not previously resolved by the previous testing.

D. If the court orders testing pursuant to subsection B, the court shall order the method and responsibility for payment, if necessary. If the court orders testing pursuant to subsection C, the court may require the petitioner to pay the costs of testing.

E. The court may appoint counsel for an indigent petitioner at any time during any proceedings under this section.

F. If the court orders testing pursuant to this section, the court shall select a laboratory that meets the standards of the deoxyribonucleic acid advisory board to conduct the testing.

G. If the prosecutor or defense counsel has previously subjected evidence to deoxyribonucleic acid testing, the court may order the prosecutor or defense counsel to provide all the parties and the court with access to the laboratory reports that were prepared in connection with the testing, including underlying data and laboratory notes. If the court orders deoxyribonucleic acid testing pursuant to this section, the court shall order the production of any laboratory reports that are prepared in connection with the testing and may order the production of any underlying data and laboratory notes.

H. If a petition is filed pursuant to this section, the court shall order the state to preserve during the pendency of the proceeding all evidence in the state's possession or control that could be subjected to deoxyribonucleic acid testing. The state shall prepare an inventory of the evidence and shall submit a copy of the inventory to the defense and the court. If evidence is intentionally destroyed after the court orders its preservation, the court may impose appropriate sanctions, including criminal contempt, for a knowing violation.

I. The court may make any other orders that the court deems appropriate, including designating any of the following:

1. The type of deoxyribonucleic acid analysis to be used.

2. The procedures to be followed during the testing.

3. The preservation of some of the sample for replicating the testing.

4. Elimination samples from third parties.

J. If the results of the postconviction deoxyribonucleic acid testing are not favorable to the petitioner, the court shall dismiss the petition. The court may make further orders as it deems appropriate, including any of the following:

1. Notifying the board of executive clemency or a probation department.

2. Requesting that the petitioner's sample be added to the federal combined
DNA index system offender database.

3. Providing notification to the victim or family of the victim.

K. Notwithstanding any other provision of law that would bar a hearing as untimely, if the results of the postconviction deoxyribonucleic acid testing are favorable to the petitioner, the court shall order a hearing and make any further orders that are required pursuant to this article or the Arizona rules of criminal procedure.

HISTORY: Last year in which legislation affected this section: 2000Laws 2000, Ch. 373, § 1.

TITLE 13. CRIMINAL CODE
CHAPTER 40. CRIME VICTIMS' RIGHTS

GO TO THE CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

A.R.S. § 13-4438 (2000)
§ 13-4438. Deoxyribonucleic acid testing; exception


A. Before a person is released and within thirty days after the arrival of a person who is accepted under the interstate compact for the supervision of parolees and probationers, the state department of corrections shall secure a blood sample sufficient for deoxyribonucleic acid testing and extraction from the person if the person was convicted of an offense listed in this section or an attempt to commit an offense listed in this section and was sentenced to a term of imprisonment. The state department of corrections shall transmit the sample to the department of public safety. A person who is accepted for interstate parole supervision by this state shall pay for the costs of the testing.

B. Before a person is released, the county jail detention facility shall secure a blood sample sufficient for deoxyribonucleic acid testing and extraction from the person if the person was convicted of or adjudicated delinquent for an offense listed in this section or an attempt to commit an offense listed in this section and was sentenced to a term of incarceration in a county jail detention facility or a county juvenile detention facility. The county jail detention facility shall transmit the sample to the department of public safety.

C. Within fifteen days after a person is convicted or adjudicated delinquent, a county probation department shall secure a blood sample sufficient for deoxyribonucleic acid testing and extraction from the person if the person is convicted of or adjudicated delinquent for an offense listed in this section or an attempt to commit an offense listed in this section and is sentenced to or placed on a term of probation. The county probation department shall transmit the sample to the department of public safety.

D. Within thirty days after the arrival of a person who is accepted under the interstate compact for the supervision of parolees and probationers, a county probation department shall secure a blood sample sufficient for deoxyribonucleic acid testing and extraction from the person if the person was convicted of an offense listed in this section or an attempt to commit an offense listed in this section and was sentenced to a term of probation. The county probation department shall transmit the sample to the department of public safety. A person who is accepted for interstate probation supervision by this state shall pay the cost of testing.

E. Before the release of a committed youth as defined in section 41-2801, the department of juvenile corrections shall secure a blood sample sufficient for deoxyribonucleic acid testing and extraction from the youth if the youth was adjudicated delinquent for an offense listed in this section or an attempt to commit an offense listed in this section and was committed to a secure care facility. The department of juvenile corrections shall transmit the sample to the department of public safety.

F. If a juvenile is accepted by the Arizona department of juvenile corrections pursuant to the interstate compact on juveniles and is adjudicated for an offense listed in this section, the compact administrator shall request that the sending state impose as a condition of supervision that the juvenile submit a blood sample sufficient for deoxyribonucleic acid testing within thirty days of arrival in this state. If the sending state does not impose that condition, the department of juvenile corrections shall request a blood sample sufficient for deoxyribonucleic acid testing within thirty days of the juvenile's arrival in this state. The department of juvenile corrections shall transmit the sample to the department of public safety.

G. Notwithstanding subsections A through F of this section, the department of public safety shall not secure a blood sample if the scientific criminal analysis section of the department has previously made a deoxyribonucleic acid analysis of the person's blood pursuant to this section and maintains a report of the results.

H. The department of public safety shall do all of the following:

1. Conduct or oversee through mutual agreement an analysis of the samples that it receives.

2. Make and maintain a report of the results of each deoxyribonucleic acid analysis.

3. Maintain blood samples for at least thirty-five years.

I. This section applies to persons who are convicted of or adjudicated delinquent for the following offenses:

1. A violation of or an attempt to violate section 13-1403, 13-1404, 13-1405, 13-1406, 13-1410, 13-1411, 13-1412, 13-1417, 13-3608, 13-3821, 13-3822 or 13-3824.

2. Beginning on January 1, 2001, a violation of or an attempt to violate Title 13, Chapter 11, section 13-1507 or section 13-1508.

3. Beginning on January 1, 2002, any offense involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury as provided in section 13-604.

HISTORY: Last year in which legislation affected this section: 2000Laws 1998, Ch. 291, § 6; Laws 1999, Ch. 305, § 4; Laws 2000, Ch. 373, § 2.


ANALYSIS
Constitutionality.
Applicability.

CONSTITUTIONALITY.
A juvenile's right to be free from unreasonable searches and seizures and right to privacy are not violated by this section or § 31-281. In re Maricopa County Juvenile Action Nos. JV-512600 & JV-512797, 187 Ariz. 419, 930 P.2d 496 (Ct. App. 1996).
This section and § 31-281, which permit the use of a juvenile's
DNA test results in adult prosecutions, do not conflict with the Arizona Constitution or § 8-207. In re Maricopa County Juvenile Action Nos. JV-512600 & JV-512797, 187 Ariz. 419, 930 P.2d 496 (Ct. App. 1996).

APPLICABILITY.
Section 1-246 does not bar retroactive application of this section nor of § 31-281 because those sections are not penal. In re Maricopa County Juvenile Action Nos. JV-512600 & JV-512797, 187 Ariz. 419, 930 P.2d 496 (Ct. App. 1996).
Where juvenile appellant was adjudicated delinquent of attempted molestation of a child, no distinction existed between the attempted offense and the completed offense sufficient to warrant setting aside important public policy considerations, or to preclude
DNA testing. In re Sean M., 189 Ariz. 323, 942 P.2d 482 (Ct. App. 1997).
Legislature's amendment to the sex offender registration statute had no effect on the
DNA testing statutes and the requirement to submit to DNA testing applied to attempted as well as completed sexual offenses. In re Sean M., 189 Ariz. 323, 942 P.2d 482 (Ct. App. 1997).

TITLE 31. PRISONS AND PRISONERS
CHAPTER 2. STATE PRISON
ARTICLE 6. DEOXYRIBONUCLEIC ACID IDENTIFICATION

GO TO THE CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

A.R.S. § 31-281 (2000)
FIRST OF TWO VERSIONS OF THIS SECTION

§ 31-281. Deoxyribonucleic acid identification; testing
Text of section as amended by Laws 2000, Ch. 193, § 263 and Laws 2000, Ch. 373, § 3, blended


A. A person who is convicted of or adjudicated delinquent for any offense listed in section 13-4438, subsection I and any person who is accepted under the interstate compact for the supervision of parolees and probationers and who has arrived in this state shall submit to deoxyribonucleic acid testing for law enforcement identification purposes. The department of public safety shall maintain both of the following:

1. Reports of the tests.

2. Blood samples for at least thirty-five years.

B. A person who is tested pursuant to this section and who has sufficient financial ability shall pay for the costs of the testing. The cost to the person shall not exceed five hundred dollars. All monies received pursuant to this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in the Arizona deoxyribonucleic acid identification system fund established by section 41-2419.

C. If a juvenile is adjudicated delinquent and is tested pursuant to subsection A of this section, the results of the test may be used for any law enforcement identification purpose, including adult prosecutions.

HISTORY: Last year in which legislation affected this section: 2000Laws 1999, Ch. 305, § 5; Laws 2000, Ch. 193, § 263; Laws 2000, Ch. 373, § 3.


ANALYSIS
Constitutionality.
Applicability.

CONSTITUTIONALITY.
A juvenile's right to be free from unreasonable searches and seizures and right to privacy are not violated by this section or § 13-4438. In re Maricopa County Juvenile Action Nos. JV-512600 & JV-512797, 187 Ariz. 419, 930 P.2d 496 (Ct. App. 1996).
This section and § 13-4438, which permit the use of a juvenile's
DNA test results in adult prosecutions, do not conflict with the Arizona Constitution or § 8-207. In re Maricopa County Juvenile Action Nos. JV-512600 & JV-512797, 187 Ariz. 419, 930 P.2d 496 (Ct. App. 1996).

APPLICABILITY.
Section 1-246 does not bar retroactive application of this section nor of § 13-4438 because those sections are not penal. In re Maricopa County Juvenile Action Nos. JV-512600 & JV-512797, 187 Ariz. 419, 930 P.2d 496 (Ct. App. 1996).
Where juvenile appellant was adjudicated delinquent of attempted molestation of a child, no distinction existed between the attempted offense and the completed offense sufficient to warrant setting aside important public policy considerations, or to preclude
DNA testing. In re Sean M., 189 Ariz. 323, 942 P.2d 482 (Ct. App. 1997).
Legislature's amendment to the sex offender registration statute had no effect on the
DNA testing statutes and the requirement to submit to DNA testing applied to attempted as well as completed sexual offenses. In re Sean M., 189 Ariz. 323, 942 P.2d 482 (Ct. App. 1997).

------------------------------
SECOND OF TWO VERSIONS OF THIS SECTION

§ 31-281. Deoxyribonucleic acid identification; sexual offenses
Text of section as amended by Laws 2000, Ch. 189, § 5 could not be blended. For blended version see the preceding section 31-281


A. A person who is convicted of or adjudicated delinquent for a sexual offense or attempt to commit a sexual offense as provided in section 13-1403, 13-1404, 13-1405, 13-1406, 13-1410, 13-1411, 13-1412, 13-1417 or 13-3608 or who is convicted of or adjudicated delinquent for a violation of section 13-3821, 13-3822, 13-3824, 13-3552, 13-3553 or 13-3554 and any person who is accepted under the interstate compact for the supervision of parolees and probationers and has arrived in this state shall submit to deoxyribonucleic acid testing for law enforcement identification purposes. The department of public safety shall maintain reports of the tests.

B. A person who is tested pursuant to subsection A of this section and who has sufficient financial ability shall pay for the costs of the testing. The cost to the person shall not exceed five hundred dollars. All monies received pursuant to this subsection shall be transmitted to the state treasurer for deposit in the Arizona deoxyribonucleic acid identification system fund established by section 41-2419.

C. If a juvenile is adjudicated delinquent and is tested pursuant to subsection A of this section, the results of the test may be used for any law enforcement identification purpose, including adult prosecutions.

HISTORY: Last year in which legislation affected this section: 2000Laws 2000, Ch. 189, § 35.

TITLE 41. STATE GOVERNMENT
CHAPTER 21. ARIZONA CRIMINAL JUSTICE COMMISSION
ARTICLE 1. GENERAL PROVISIONS

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A.R.S. § 41-2418 (2000)
§ 41-2418. Arizona deoxyribonucleic acid identification system


A. The Arizona deoxyribonucleic acid identification system is established in the department of public safety for the purposes of conducting deoxyribonucleic acid testing and analysis pursuant to sections 13-4438 and 31-281.

B. The scientific criminal analysis section established in section 41-1771 shall establish procedures for the implementation of sections 13-4438 and 31-281.

HISTORY: Last year in which legislation affected this section: 1993


ANALYSIS
Applicability.

APPLICABILITY.
Because the Arizona
DNA Identification System was created for the purpose of conducting deoxyribonucleic acid testing and analysis pursuant to §§ 13-4438 and 31-281, these sex-offender statutes are the only feeder statutes for the Arizona DNA Identification System, and they apply only to persons who have been convicted of a sexual offense; therefore, DNA testing cannot apply to juvenile delinquency. In re Maricopa County, 183 Ariz. 175, 901 P.2d 1205 (Ct. App. 1995).



 

ARKANSAS

TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1101 (2001)
§ 12-12-1101. Short title


This subchapter shall be known and may be cited as the "
DNA Detection of Sexual and Violent Offenders Act".

HISTORY: Acts 1997, No. 737, § 1.

NOTES APPLICABLE TO ENTIRE CHAPTER

A.C.R.C. NOTES. References to "this chapter" in §§ 12-12-102 -- 12-12-215 and subchapters 3-13 may not apply to § 12-12-216 which was enacted subsequently.
References to "this chapter" in subchapters 1-8 and 10 may not apply to subchapters 9, 11, 12, and 13 which were enacted subsequently.

CROSS REFERENCES. Law enforcement officers, immunity from civil liability, § 23-60-111.

NOTES APPLICABLE TO ENTIRE SUBCHAPTER

A.C.R.C. NOTES. References to "this chapter" in subchapters 1-8, 10, and 13 may not apply to this subchapter which was enacted subsequently.

PUBLISHER'S NOTES. Former subchapter 11, concerning a deoxyribonucleic acid (
DNA) database, was repealed by Acts 1997, No. 737, § 23. The subchapter was derived from the following sources:
12-12-1101. Acts 1995, No. 922, § 1.
12-12-1102. Acts 1995, No. 922, § 1.
12-12-1103. Acts 1995, No. 922, § 2.
12-12-1104. Acts 1995, No. 922, § 3.


TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1102 (2001)
§ 12-12-1102. Purpose


The General Assembly finds and declares that deoxyribonucleic acid (
DNA) data banks are an important tool in criminal investigations, in the exclusion of individuals who are the subjects of criminal investigations or prosecutions, and in deterring and detecting recidivist acts. Several states have enacted laws requiring persons convicted of certain crimes, especially sexual offenses, to provide genetic samples for deoxyribonucleic acid (DNA) profiling. Moreover, it is the policy of this state to assist federal, state, and local criminal justice and law enforcement agencies in the identification and detection of individuals in criminal investigations. It is therefore in the best interest of the State of Arkansas to establish a deoxyribonucleic acid (DNA) data base and a deoxyribonucleic acid (DNA) data bank containing deoxyribonucleic acid (DNA) samples submitted by individuals convicted of sex offenses and violent offenses.

HISTORY: Acts 1997, No. 737, § 2.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.

TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1103 (2001)
§ 12-12-1103. Definitions


As used in this subchapter:

(1) "Adjudication of guilt" and words of similar import mean a plea of guilty, a plea of nolo contendere, a negotiated plea, a finding of guilt by a judge, or a finding of guilt by a jury;

(2) (A) "Administration of criminal justice" means performing functions of investigation, apprehension, detention, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders.

(B) The administration of criminal justice also includes criminal identification activities and the collection, maintenance, and dissemination of criminal justice information;

(3) (A) "CODIS" means the Federal Bureau of Investigation's national deoxyribonucleic acid (
DNA) identification index system that allows the storage and exchange of deoxyribonucleic acid (DNA) records submitted by state and local forensic laboratories.

(B) The term is derived from Combined
DNA Index System;

(4) "Criminal justice agency" means a government agency, or any subunit thereof, which is authorized by law to perform the administration of criminal justice, and which allocates more than one-half ( 1/2) its annual budget to the administration of criminal justice;

(5) (A) "
DNA" means deoxyribonucleic acid.

(B) (i) Deoxyribonucleic acid (
DNA) is located in the cells and provides an individual's personal genetic blueprint.

(ii) Deoxyribonucleic acid (
DNA) encodes genetic information that is the basis of human heredity and forensic identification;

(6) (A) "Deoxyribonucleic acid (
DNA) record" means deoxyribonucleic acid (DNA) identification information stored in the State DNA Data Base or CODIS for the purpose of generating investigative leads or supporting statistical interpretation of deoxyribonucleic acid (DNA) test results.

(B) The deoxyribonucleic acid (
DNA) record is the result obtained from the deoxyribonucleic acid (DNA) typing tests.

(C) The deoxyribonucleic acid (
DNA) record is composed of the characteristics of a deoxyribonucleic acid (DNA) sample which are of value in establishing the identity of individuals.

(D) The results of all deoxyribonucleic acid (
DNA) identification tests on an individual's deoxyribonucleic acid (DNA) sample are also collectively referred to as the deoxyribonucleic acid (DNA) profile of an individual;

(7) "Deoxyribonucleic acid (
DNA) sample" means a blood or tissue sample provided by any person with respect to offenses covered by this subchapter or submitted to the State Crime Laboratory for analysis or storage or both;

(8) "FBI" means the Federal Bureau of Investigation;

(9) "Repeat offense" means a second or subsequent adjudication of guilt in a separate criminal action for the commission of any misdemeanor or felony offense involving violence as set forth in Arkansas law, the law of another state, federal law, or military law;

(10) "Sex offense" means:

(A) (i) Rape -- § 5-14-103;

(ii) Carnal abuse in the first degree -- § 5-14-104;

(iii) Carnal abuse in the second degree -- § 5-14-105;

(iv) Carnal abuse in the third degree -- § 5-14-106;

(v) Sexual misconduct -- § 5-14-107;

(vi) Sexual abuse in the first degree -- § 5-14-108;

(vii) Sexual abuse in the second degree -- § 5-14-109;

(viii) Sexual solicitation of a child -- § 5-14-110;

(ix) Violation of a minor in the first degree -- § 5-14-120;

(x) Violation of a minor in the second degree -- § 5-14-121;

(xi) Incest -- § 5-26-202;

(xii) Engaging children in sexually explicit conduct for use in visual or print medium -- § 5-27-303;

(xiii) Transportation of minors for prohibited sexual conduct -- § 5-27-305;

(xiv) Employing or consenting to use of child in sexual performance -- § 5-27-402;

(xv) Producing, directing, or promoting sexual performance -- § 5-27-403;

(xvi) Promoting prostitution in the first degree -- § 5-70-104;

(xvii) Stalking -- § 5-71-229;

(B) An attempt, solicitation, or conspiracy to commit any of the offenses enumated in subdivision (10)(A) of this section; or

(C) A violation of any former law of this state which is substantially equivalent to any of the offenses enumerated insubdivision (10)(A) of this section; and

(11) "Violent offense" means:

(A) (i) Murder -- § 5-10-101, 5-10-102, or 5-10-103;

(ii) Manslaughter -- § 5-10-104;

(iii) Robbery -- § 5-12-102;

(iv) Aggravated robbery -- § 5-12-103;

(v) Battery in the first degree -- § 5-13-201;

(vi) Battery in the second degree -- § 5-13-202;

(vii) Aggravated assault -- § 5-13-204;

(viii) Terroristic threatening in the first degree -- § 5-13-301;

(ix) Domestic battering -- §§ 5-26-303 -- 5-26-305;

(x) Aggravated assault on family or household member -- § 5-26-306;

(xi) Engaging in a continuing criminal gang, organization, or enterprise -- § 5-74-104;

(xii) Kidnapping -- § 5-11-102;

(xiii) False imprisonment in the first degree -- § 5-11-103;

(xiv) Permanent detention or restraint -- § 5-11-106;

(B) An attempt, solicitation, or conspiracy to commit any of these enumerated offenses; or

(C) A violation of any former law of this state which is substantially equivalent to any of the offenses enumerated in subdivision (11)(A) of this section.

HISTORY: Acts 1997, No. 737, § 3.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.

TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1104 (2001)
§ 12-12-1104. Powers and duties of State Crime Laboratory


In addition to any other powers and duties conferred by this subchapter, the State Crime Laboratory shall:

(1) Be responsible for the policy management and administration of the state deoxyribonucleic acid (
DNA) identification record system to support law enforcement agencies and other criminal justice agencies;

(2) Promulgate rules and regulations to carry out the provisions of this subchapter; and

(3) Provide for liaison with the Federal Bureau of Investigation and other criminal justice agencies in regard to the state's participation in CODIS or in any deoxyribonucleic acid (
DNA) data base designated by the State Crime Laboratory.

HISTORY: Acts 1997, No. 737, § 4.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.



TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1105 (2001)
§ 12-12-1105. State
DNA Data Base


(a) (1) There is established the State
DNA Data Base.

(2) It shall be administered by the State Crime Laboratory and provide deoxyribonucleic acid (
DNA) records to the Federal Bureau of Investigation for storage and maintenance in CODIS.

(b) The State
DNA Data Base shall have the capability provided by computer software and procedures administered by the State Crime Laboratory to store and maintain deoxyribonucleic acid (DNA) records related to:

(1) Forensic casework;

(2) Offenders who are required to provide a deoxyribonucleic acid (
DNA) sample under this subchapter;

(3) Offenders who were required to provide a deoxyribonucleic acid (
DNA) sample under former § 12-12-1101 et seq. (repealed); and

(4) Anonymous deoxyribonucleic acid (
DNA) records used for research or quality control.

HISTORY: Acts 1997, No. 737, § 5.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.



TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1106 (2001)
§ 12-12-1106. State
DNA Data Bank


(a) There is established the State
DNA Data Bank.

(b) It shall serve as the repository of deoxyribonucleic acid (
DNA) samples collected under this subchapter.

HISTORY: Acts 1997, No. 737, § 6.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.


TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1107 (2001)
§ 12-12-1107. State Crime Laboratory recommendation of additional offenses.


(a) The State Crime Laboratory may recommend to the General Assembly that it enact legislation for the inclusion of additional offenses for which deoxyribonucleic acid (
DNA) samples shall be taken and otherwise subjected to the provisions of this subchapter.

(b) In determining whether to recommend additional offenses, the State Crime Laboratory shall consider those offenses for which deoxyribonucleic acid (
DNA) testing will have a substantial impact on the detection and identification of sex offenders and violent offenders.

HISTORY: Acts 1997, No. 737, § 7.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.


TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1108 (2001)
§ 12-12-1108. Procedural compatibility with the Federal Bureau of Investigation


The deoxyribonucleic acid (
DNA) identification system as established by the State Crime Laboratory shall be compatible with the procedures specified by the FBI, including use of comparable test procedures, laboratory equipment, supplies, and computer software.

HISTORY: Acts 1997, No. 737, § 8.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.


TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1109 (2000)
STATUS: CONSULT SLIP LAWS CITED BELOW FOR RECENT CHANGES TO THIS DOCUMENT
LEXSEE 2001 Ark. ALS 218 -- See section 1.

§ 12-12-1109.
DNA sample required upon adjudication of guilt


(a) Adjudication of guilt after August 1, 1997. A person who is adjudicated guilty or adjudicated delinquent for a sex offense, a violent offense, or a repeat offense on or after August 1, 1997, shall have a deoxyribonucleic acid (
DNA) sample drawn as follows:

(1) (A) A person who is adjudicated guilty or adjudicated delinquent for a sex offense, a violent offense, or a repeat offense and sentenced to a term of confinement for that sex offense, violent offense, or repeat offense shall have a deoxyribonucleic acid (
DNA) sample drawn upon intake to a prison, jail, juvenile detention facility, or any other detention facility or institution.

(B) If the person is already confined at the time of sentencing, the person shall have a deoxyribonucleic acid (
DNA) sample drawn immediately after the sentencing.

(2) A person who is adjudicated guilty or adjudicated delinquent for a sex offense, a violent offense, or a repeat offense shall have a deoxyribonucleic acid (
DNA) sample drawn as a condition of any sentence in which disposition will not involve an intake into a prison, jail, juvenile detention facility, or any other detention facility or institution;

(3) A person who is acquitted on the grounds of mental disease or defect of the commission of a sex offense, a violent offense, or a repeat offense and committed to an institution or other facility shall have a deoxyribonucleic acid (
DNA) sample drawn upon intake to that institution or other facility; and

(4) Under no circumstance shall a person who is adjudicated guilty or adjudicated delinquent for a sex offense, a violent offense, or a repeat offense be released in any manner after such disposition unless and until a deoxyribonucleic acid (
DNA) sample has been drawn.

(b) Adjudication of guilt before August 1, 1997. A person who has been adjudicated guilty or adjudicated delinquent for a sex offense, a violent offense, or a repeat offense before August 1, 1997, and who is still serving a term of confinement in connection therewith on August 1, 1997, shall not be released in any manner prior to the expiration of his maximum term of confinement unless and until a deoxyribonucleic acid (
DNA) sample has been drawn.

(c) Supervision of deoxyribonucleic acid (
DNA) samples. All deoxyribonucleic acid (DNA) samples taken pursuant to this section shall be taken in accordance with regulations promulgated by the State Crime Laboratory in consultation with the Department of Correction, the Department of Community Punishment, the Department of Human Services, and the Administrative Office of the Courts.

HISTORY: Acts 1997, No. 737, § 9.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.

TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1110 (2001)
§ 12-12-1110. Procedures of withdrawal, collection, and transmission of
DNA samples


(a) Drawing of deoxyribonucleic acid (
DNA) samples.

(1) (A) Each deoxyribonucleic acid (
DNA) sample required to be drawn pursuant to § 12-12-1109 from persons who are incarcerated shall be drawn at the place of incarceration or confinement as provided for in § 12-12-1109.

(B) Deoxyribonucleic acid (
DNA) samples from persons who are not committed or sentenced to a term of confinement shall be drawn at another facility to be specified by the sentencing court.

(C) Only those individuals qualified to draw deoxyribonucleic acid (
DNA) samples in a medically approved manner shall draw a deoxyribonucleic acid (DNA) sample to be submitted for analysis.

(2) In addition to the deoxyribonucleic acid (
DNA) sample, a right thumbprint shall be taken from the person from whom the deoxyribonucleic acid (DNA) sample is drawn for the exclusive purpose of verifying the identity of the person.

(b) Delivery of deoxyribonucleic acid (
DNA) samples. The deoxyribonucleic acid (DNA) sample and the right thumbprint provided for in subdivision (a)(2) of this section shall be delivered to the State Crime Laboratory in accordance with guidelines established by the State Crime Laboratory.

(c) Limitation on liability.

(1) Persons authorized to draw blood by this section shall not be criminally liable for drawing a deoxyribonucleic acid (
DNA) sample and transmitting the deoxyribonucleic acid (DNA) sample pursuant to this subchapter if they perform these activities in good faith.

(2) Persons authorized to draw blood by this section shall not be civilly liable for such activities when the persons acted in a reasonable manner and according to generally accepted medical and other professional practices.

(d) Reasonable use of force.

(1) Authorized law enforcement and corrections personnel may employ reasonable force in cases where an individual refuses to submit to deoxyribonucleic acid (
DNA) testing authorized under this subchapter.

(2) No such employee shall be criminally or civilly liable for the use of reasonable force.

(e) Refusal to provide deoxyribonucleic acid (
DNA) sample. Any person who refuses to provide a deoxyribonucleic acid (DNA) sample required by this subchapter will receive no further sentence reduction from meritorious good time until such time as a sample is provided, and the Department of Correction shall notify the Post Prison Transfer Board regarding the refusal.

HISTORY: Acts 1997, No. 737, § 10.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.

TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

A.C.A. § 12-12-1108 (2001)
§ 12-12-1108. Procedural compatibility with the Federal Bureau of Investigation


The deoxyribonucleic acid (
DNA) identification system as established by the State Crime Laboratory shall be compatible with the procedures specified by the FBI, including use of comparable test procedures, laboratory equipment, supplies, and computer software.

HISTORY: Acts 1997, No. 737, § 8.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.

 

TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1112 (2001)
§ 12-12-1112. Receipt and analysis of
DNA samples -- Availability of information


(a) Receipt of deoxyribonucleic acid (
DNA) samples by State Crime Laboratory.

(1) The State Crime Laboratory shall receive deoxyribonucleic acid (
DNA) samples, store, perform analysis or contract for deoxyribonucleic acid (DNA) typing analysis with a qualified deoxyribonucleic acid (DNA) laboratory that meets the guidelines as established by the State Crime Laboratory, classify and file the deoxyribonucleic acid (DNA) record of identification characteristic profiles of deoxyribonucleic acid (DNA) samples submitted under this subchapter, and make such information available from the State DNA Data Base as provided in this section.

(2) The State Crime Laboratory may contract out the storage of deoxyribonucleic acid (
DNA) typing analysis and may contract out deoxyribonucleic acid (DNA) typing analysis to a qualified deoxyribonucleic acid (DNA) laboratory that meets guidelines as established by the State Crime Laboratory.

(b) The results of the deoxyribonucleic acid (
DNA) profile of individuals in the State Data Base shall be made available:

(1) To criminal justice agencies or to approved crime laboratories which serve these agencies; or

(2) Upon written or electronic request and in furtherance of an official investigation of a criminal offense.

(c) Methods of obtaining information. The State Crime Laboratory shall adopt rules governing the methods of obtaining information from the State
DNA Data Base and CODIS and procedures for verification of the identity and authority of the requester.

(d) Population data base.

(1) The State Crime Laboratory may create a separate population data base composed of deoxyribonucleic acid (
DNA) samples obtained under this subchapter after all personal identification is removed.

(2) The State Crime Laboratory may share or disseminate the population data base with other criminal justice agencies or crime laboratories that serve to assist the State Crime Laboratory with statistical data bases.

(3) The population data base may be made available to and searched by other agencies participating in the CODIS system.

HISTORY: Acts 1997, No. 737, § 12.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.


TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1113 (2001)
§ 12-12-1113. Removal and destruction of the
DNA record and DNA sample


(a) (1) Any person whose deoxyribonucleic acid (
DNA) record has been included in the State DNA Data Base and whose deoxyribonucleic acid (DNA) sample is stored in the State DNA Data Bank may apply to any circuit court for removal and destruction of the deoxyribonucleic acid (DNA) record and deoxyribonucleic acid (DNA) sample on the grounds that the adjudication of guilt that resulted in the inclusion of the person's deoxyribonucleic acid (DNA) record in the State DNA Data Base or the inclusion of the person's deoxyribonucleic acid (DNA) sample in the State DNA Data Bank has been reversed and the case dismissed.

(2) A copy of the application for removal and destruction shall be served on the prosecutor for the county in which the adjudication of guilt was obtained not less than twenty (20) days prior to the date of the hearing on the application.

(3) A certified copy of the order reversing and dismissing the adjudication of guilt shall be attached to an order removing and destroying the deoxyribonucleic acid (
DNA) record and deoxyribonucleic acid (DNA) sample insofar as its inclusion rests upon that adjudication of guilt.

(b) (1) Upon receipt of an order of removal and destruction and unless otherwise provided, the State Crime Laboratory shall purge the deoxyribonucleic acid (
DNA) record and other identifiable information from the State DNA Data Base and the deoxyribonucleic acid (DNA) sample stored in the State DNA Data Bank covered by the order.

(2) If the entry in the data base reflects more than one (1) adjudication of guilt, that entry shall not be removed and destroyed unless and until the person has obtained an order of removal and destruction for each adjudication of guilt on the grounds contained in subsection (a) of this section.

(3) If one (1) of the bases for inclusion in the State
DNA Data Base was other than adjudication of guilt, that entry shall not be subject to removal and destruction.

HISTORY: Acts 1997, No. 737, § 13.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.


TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1114 (2001)
§ 12-12-1114. Confidentiality


All deoxyribonucleic acid (
DNA) profiles and samples submitted to the State Crime Laboratory pursuant to this subchapter shall be treated as confidential except as otherwise provided in this subchapter.

HISTORY: Acts 1997, No. 737, § 14.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.


TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1115 (2001)
§ 12-12-1115. Prohibition against disclosure


(a) (1) Any person who by virtue of employment, or official position, or any person contracting to carry out any functions under this subchapter, including any officers, employees, and agents of such contractor, who has possession of, or access to, individually identifiable deoxyribonucleic acid (
DNA) information contained in the State DNA Data Base or State DNA Data Bank shall not disclose it in any manner to any person or agency not entitled to receive it knowing that such person is not entitled to receive it.

(2) No person shall obtain individually identifiable deoxyribonucleic acid (
DNA) information from the State DNA Data Base or the State DNA Data Bank without authorization to do so.

(b) Any person who knowingly violates this section is guilty of a Class A misdemeanor.

HISTORY: Acts 1997, No. 737, § 15.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.



TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1116 (2001)
§ 12-12-1116. Prohibition against disclosure for pecuniary gain


Any person who by virtue of employment, or official position, or any person contracting to carry out any functions under this subchapter, including any officers, employees, and agents of such contractor, who has possession of, or access to, individually identifiable deoxyribonucleic acid (
DNA) information contained in the State DNA Data Base or State DNA Data Bank and who for pecuniary gain for such person or for any other person discloses it in any manner to any person or agency not authorized to receive it commits a Class A misdemeanor.

HISTORY: Acts 1997, No. 737, § 16.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.

 

 

TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

A.C.A. § 12-12-1117 (2001)
§ 12-12-1117. Injunctions


The State Crime Laboratory or any other aggrieved individual or agency may institute an action in a court of competent jurisdiction against any person, agency, or organization to enjoin any criminal justice agency, noncriminal justice agency, organization, or individual from violating the provisions of this subchapter or to compel such agency, organization, or person to comply with the provisions of this subchapter.

HISTORY: Acts 1997, No. 737, § 17.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.




TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

A.C.A. § 12-12-1118 (2001)
§ 12-12-1118. Mandatory cost


Unless finding that undue hardship would result, the sentencing court shall assess at the time of sentencing a mandatory fine of not less than two hundred fifty dollars ($250) on any person who is required to provide a deoxyribonucleic acid (
DNA) sample under this subchapter.

HISTORY: Acts 1997, No. 737, § 18.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.



TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 12-12-1119 (2001)
§ 12-12-1119.
DNA Detection Fund


(a) There is hereby established on the books of the Treasurer of State, Auditor of State, and Chief Fiscal Officer of the State a fund to be known as the "
DNA Detection Fund".

(b) This fund shall consist of special revenues collected pursuant to § 12-12-1118 there to be used by the State Crime Laboratory for the administration of this subchapter.

HISTORY: Acts 1997, No. 737, § 19.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.


TITLE 12. LAW ENFORCEMENT, EMERGENCY MANAGEMENT, AND MILITARY AFFAIRS
SUBTITLE 2. LAW ENFORCEMENT AGENCIES AND PROGRAMS
CHAPTER 12. CRIME REPORTING AND INVESTIGATIONS
SUBCHAPTER 11.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

A.C.A. § 12-12-1120 (2001)
§ 12-12-1120. Authority of law enforcement officers


Nothing in this subchapter shall limit or abrogate any existing authority of law enforcement officers to take, maintain, store, and utilize deoxyribonucleic acid (
DNA) samples for law enforcement purposes.

HISTORY: Acts 1997, No. 737, § 20.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.



TITLE 19. PUBLIC FINANCE
CHAPTER 6. REVENUE CLASSIFICATION LAW
SUBCHAPTER 3. SPECIAL REVENUES

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

A.C.A. § 19-6-301 (2000)
STATUS: CONSULT SLIP LAWS CITED BELOW FOR RECENT CHANGES TO THIS DOCUMENT
LEXSEE 2001 Ark. ALS 229 -- See sections 5 and 7.

§ 19-6-301. Special revenues enumerated


The special revenues of the state, its agencies, departments, institutions, commissions, and boards, as provided by law and as required by law to be deposited in the State Treasury, shall consist of the following, as described by their commonly known titles:

(1) The remainder of motor vehicle operator and chauffeur licenses and penalties, as confirmed and enacted by §§ 12-8-301 -- 12-8-310, known as the "Department of Arkansas State Police Communications Equipment Leasing Act", which are not required for debt service requirements that are authorized to be deposited in the State Treasury under the provisions of §§ 12-8-307 -- 12-8-310;

(2) Motor vehicle registration and license fees, as enacted by Act 65 of 1929, §§ 26-55-101, 27-14-305, 27-14-601, 27-15-1501, 27-64-104, 27-65-101, 27-65-107, 27-65-110, 27-65-112, 27-65-131 -- 27-65-133, 27-67-101, 27-67-102, 27-67-201, 27-67-206 -- 27-67-208, 27-67-211, 27-67-214, and 27-67-218, and all laws amendatory thereto, Act 87 of 1965, § 27-15-4001, Act 122 of 1959, § 27-15-2101, Act 189 of 1959, § 27-15-2003, and Act 36 of 1969, §§ 27-15-401 -- 27-15-406;

(3) Distillate special motor fuels taxes and liquefied gas special motor fuels taxes and license and permit fees, as enacted by § 26-56-101 et seq., known as the "Special Motor Fuels Tax Law", and all laws amendatory thereto, including the nine and one-half cent (9.5¢) tax on distillate special motor fuels levied by § 26-56-201(a)(1), the seven and one-half cent (7.5¢) tax on liquefied gas special motor fuels levied by § 26-56-301(a), the additional one cent (1¢) tax on distillate special motor fuels levied by § 26-56-201(a)(2), the additional four cent (4¢) tax on liquefied gas special motor fuels and the additional two cent (2¢) tax on distillate special motor fuels levied by § 26-56-502(a), the additional four cent (4¢) tax on distillate special motor fuels levied by § 26-56-201(d)(1), the additional five cent (5¢) tax on liquefied gas special motor fuels and the additional two cent (2¢) tax on distillate special motor fuels levied by §§ 26-55-1201(a) and 26-56-601, and the additional liquefied gas special motor fuels user permit fees levied in § 26-55-1002;

(4) Gasoline taxes, as enacted by § 26-55-201 et seq., including the eight and one-half cent (8.5¢) tax on motor fuels levied by § 26-55-205(a), the additional one cent (1¢) tax on motor fuels levied by § 26-55-205(b), the additional four cent (4¢) tax on motor fuels levied by § 26-55-1002(a), and the additional five cent (5¢) tax on motor fuels levied by §§ 26-55-1201(a) and 26-56-601;

(5) Fireworks licenses, as enacted by Act 224 of 1961, and all laws amendatory thereto, §§ 20-22-701 -- 20-22-715;

(6) Timberlands taxes, as enacted by Act 354 of 1969, known as the "Forest Fire Protection Tax Act of 1969", and all laws amendatory thereto, § 26-61-101 et seq., state forests and nurseries management income not deposited in the State Forestry Trust Fund, §§ 15-31-115 and 19-5-927; law enforcement fine collections, §§ 5-38-201, 15-31-113, and 15-31-114; and timber management plan fees, § 15-31-111;

(7) Motor vehicle in-transit fees, as enacted by Act 183 of 1935, and all laws amendatory thereto, §§ 27-14-1801 -- 27-14-1808;

(8) Motor vehicle drive-out licenses, as enacted by Act 111 of 1955, §§ 27-14-2101 -- 27-14-2105;

(9) Motor vehicle certificates of title and duplicates, noting liens, transfer of registration and duplicate or substitute registration certificates and license plates, § 27-14-602, in excess of and after the amounts required to pay the principal and interest on loans and bonds have been made under the 1995 New Revenue Division Building Act, Act 725 of 1995 [see Publisher Note];

(10) Overweight and special permits for vehicles and overlength crane permits, as enacted by Act 98 of 1955, and all laws amendatory thereto, §§ 27-35-201 -- 27-35-203, 27-35-206 -- 27-35-208, and 27-35-210; and, overwidth or overlength mobile home permits, as enacted by Act 264 of 1971, and all laws amendatory thereto, §§ 27-35-211 and 27-35-301 et seq.;

(11) Motor vehicle title registration fees and the noting of liens fees, as enacted by Act 142 of 1949, known as the "Uniform Motor Vehicle Administration, Certificate of Title, and Antitheft Act", and all laws amendatory thereto, §§ 27-14-101 et seq., 27-14-201 et seq., 27-14-301 -- 27-14-304, 27-14-306 -- 27-14-308, 27-14-310, 27-14-312, 27-14-313, 27-14-401 et seq., 27-14-602, 27-14-604, 27-14-606, 27-14-701, 27-14-703, 27-14-705, 27-14-707, 27-14-708, 27-14-710 -- 27-14-716, 27-14-718 --27-14-722, 27-14-801 -- 27-14-804, 27-14-901 -- 27-14-904, 27-14-905 [repealed], 27-14-906 -- 27-14-913, 27-14-1701 et seq., 27-14-2001 et seq., 27-14-2203 -- 27-14-2205, 27-14-2207, 27-14-2210, and 27-14-2211, which are in excess of the amount required by Act 38 of the First Special Session of 1961, known as the "Arkansas Revenue Department Building Act", to be cash funds pledged for the principal and interest payments of the Revenue Department Building Commission revenue bonds;

(12) Soybean assessments, as enacted by Act 259 of 1971, §§ 2-20-401, 2-20-403, 2-20-404, and 2-20-406 -- 2-20-409;

(13) Paying patients' fees, excluding those received from Medicare or Medicaid and the Social Security Administration, or from other sources which cause a decrease in the monthly vendor payment, for services provided by the appropriate Mental Health Services and Developmental Disabilities Services divisions and programs of the Department of Human Services;

(14) Fees received by the Arkansas Crime Information Center for driver's records and other informational services, as enacted by Act 286 of 1971, and all laws amendatory thereto, §§ 12-12-201 -- 12-12-203, 12-12-206, 12-12-207, 12-12-209, and 12-12-211 -- 12-12-213;

(15) Dog racing taxes derived from all revenues from the pari-mutuel tax of fifteen (15) additional days of dog races authorized by §§ 23-111-502 -- 23-111-505, and all laws amendatory thereto;

(16) Dog racing taxes derived from two-thirds (2/3) of the net proceeds of three (3) additional days of dog races at each meet, as authorized by §§ 23-111-502 -- 23-111-505, and all laws amendatory thereto;

(17) Aviation sales and use taxes, as enacted by Act 449 of 1967, and all laws amendatory thereto, § 27-115-110;

(18) Revenue received from saw timber and timber products severance taxes and twenty-five percent (25%) of all other severance taxes, as enacted by Act 136 of 1947, and all laws amendatory thereto, §§ 26-58-101 -- 26-58-103, 26-58-106 -- 26-58-111, 26-58-114 -- 26-58-116, 26-58-118 -- 26-58-120, 26-58-123, and 26-58-124;

(19) Motor fuel tax forms, including books and decals, as enacted by Act 376 of 1967, § 26-55-713;

(20) Motor boat registration fees, as enacted by Act 453 of 1959, and all laws amendatory thereto, §§ 27-101-101 -- 27-101-109, 27-101-201 et seq., 27-101-301 -- 27-101-306, and 27-101-308 -- 27-101-312;

(21) Three percent (3%) municipal taxes, which are further identified as the three percent (3%) collection cost of the one percent (1%) gross receipts tax levied by a city having a population of not more than thirty thousand (30,000) persons that has been designated as a model city, as authorized by Act 4 of the First Extraordinary Session of 1968, and all laws amendatory thereto, §§ 26-75-501 -- 26-75-507;

(22) Drivers' search fees, as enacted by Act 465 of 1977, and all laws amendatory thereto, §§ 27-50-901 -- 27-50-903, and 27-50-905 -- 27-50-911, and Act 241 of 1989, §§ 27-23-118(b)(2) and 27-23-118(c)(2);

(23) Excess athletic commission fees, as enacted by Act 131 of 1927, §§ 17-22-201 -- 17-22-204, 17-22-301 -- 17-22-303, and 17-22-305;

(24) Private career education school licenses and fees, as enacted by Act 906 of 1989, and all laws amendatory thereto, §§ 6-51-601 -- 6-51-617;

(25) Elevator safety board fees, as enacted by Act 189 of 1963, and all laws amendatory thereto, §§ 20-24-101 -- 20-24-117, and 20-24-119;

(26) Net proceeds derived from the sale of pine grown on state highway rights-of-way or other highway related areas, as enacted by Act 696 of 1983, § 22-5-101;

(27) Insurance premium taxes collected from foreign insurers and domestic insurers on insurance premiums upon property insured against fire and extended coverage, tornado, windstorm, cyclone, and hail located in cities, towns, and fire protection districts which have organized fire departments which qualify for the firemen's relief and pension funds, as enacted by Act 148 of 1959, and all laws amendatory thereto, §§ 23-60-101 -- 23-60-108, 23-60-110, 23-61-101 -- 23-61-112, 23-61-201 -- 23-61-206, 23-61-301 -- 23-61-307, 23-61-401, 23-61-402, 23-62-101 -- 23-62-108, 23-62-201, 23-62-202, 23-62-203 [repealed], 23-62-204, 23-62-205, 23-63-101 -- 23-63-104, 23-63-201 -- 23-63-216, 23-63-301, 23-63-302, 23-63-401 -- 23-63-404 [repealed], 23-63-601 -- 23-63-613, 23-63-701, 23-63-801 -- 23-63-833, 23-63-835 -- 23-63-838, 23-63-901 -- 23-63-912, 23-63-1001 -- 23-63-1004, 23-64-101 -- 23-64-103, 23-64-202 -- 23-64-227, 23-64-228 [transferred], 23-64-229 [transferred], 23-65-101 -- 23-65-104, 23-65-201 -- 23-65-205, 23-65-301 -- 23-65-319, 23-66-201 -- 23-66-214, 23-66-301 -- 23-66-306, 23-66-308 -- 23-66-311, 23-66-313, 23-66-314, 23-68-101 -- 23-68-113, 23-68-115 -- 23-68-132, 23-69-101 -- 23-69-103, 23-69-105 -- 23-69-141, 23-69-143, 23-69-149 -- 23-69-156, 23-70-101 -- 23-70-124, 23-71-101 -- 23-71-116, 23-72-101 -- 23-72-122, 23-73-101 -- 23-73-107, 23-73-108 [repealed], 23-73-109 [repealed], 23-73-110 -- 23-73-116, 23-75-101 -- 23-75-120, 23-79-101 -- 23-79-106, 23-79-109 -- 23-79-128, 23-79-131 -- 23-79-134, 23-79-202 -- 23-79-210, 23-81-101 -- 23-81-117, 23-81-120 -- 23-81-136, 23-81-201 -- 23-81-213, 23-82-101 -- 23-82-118, 23-84-101 -- 23-84-111, 23-85-101 -- 23-85-131, 23-86-101 -- 23-86-104, 23-86-106 -- 23-86-109, 23-86-112, 23-87-101 -- 23-87-119, 23-88-101, 23-89-101, 23-89-102, 26-57-601 -- 26-57-605, 26-57-607, 26-57-608, and 26-57-610; and insurance premium taxes collected from alien and foreign insurers on insurance premiums upon insurance contracts written on motor vehicles, the licensed address of which is a qualified city or town for the police officers' pension and relief fund, as enacted by Act 270 of 1981, and all laws amendatory thereto, §§ 24-11-301 -- 24-11-303; with the exception of those premium taxes set aside for transfer to the State Police Retirement Fund under § 24-6-209(b).

(28) Bank department charter fees, assessments, and examination fees, as enacted by Act 113 of 1913, and all laws amendatory thereto, §§ 16-110-406, 23-30-101, 23-31-201 -- 23-31-205, 23-31-212 -- 23-31-215, 23-32-102, 23-32-201 -- 23-32-204, 23-32-208, 23-32-210, 23-32-216, 23-32-222, 23-32-224, 23-32-225, 23-32-227, 23-32-228, 23-32-701, 23-32-703 -- 23-32-705, 23-32-710, 23-32-713, 23-32-716, 23-32-803, 23-32-905, 23-32-1001, 23-32-1002, 23-32-1006, 23-32-1008, 23-32-1101 -- 23-32-1103, 23-32-1106, 23-32-1108 -- 23-32-1111, 23-33-101 -- 23-33-103, 23-33-105, 23-33-106, 23-33-201 -- 23-33-207, 23-33-212, 23-33-213, 23-33-301 -- 23-33-308, 23-33-310, 23-34-101, 23-34-103, 23-34-105, 23-34-106, 23-34-108, 23-34-110, and 23-34-111 [see Publisher Note];

(29) Industrial loan institutions assessments and examination fees, as enacted by Act 111 of 1941, §§ 23-36-101 -- 23-36-117;

(30) [Repealed];

(31) Fees recovered from ex-offenders on probation or parole from a facility of the Department of Community Punishment, as enacted by Act 70 of 1981, and all laws amendatory thereto, § 16-93-104;

(32) Liquefied petroleum gas board filing fees, inspection fees, registration fees, permits, and certificates of competency, as enacted by Act 31 of 1965, known as the "Liquefied Petroleum Gas Board Act", and all laws amendatory thereto, §§ 15-75-101 -- 15-75-108, 15-75-110, 15-75-201 -- 15-75-204, 15-75-205 [repealed], 15-75-206 -- 15-75-209, 15-75-301 -- 15-75-321, and 15-75-401 -- 15-75-405;

(33) Brand registration, sales of state brand books, and fees for transfer of brand titles, as enacted by Act 179 of 1959, §§ 2-34-201 -- 2-34-212;

(34) Arkansas Livestock and Poultry Commission fees and revenues as enacted by Act 867 of 1981, and all laws amendatory thereto, § 2-33-113(a), consisting of: income from the livestock spraying program, as enacted by Act 360 of 1969, and all laws amendatory thereto, §§ 2-33-207 and 2-33-208; poultry and egg grading fees as enacted by Act 220 of 1969, known as "The Arkansas Egg Marketing Act of 1969", and all laws amendatory thereto, §§ 20-58-201 -- 20-58-216; Act 49 of 1965, and all laws amendatory thereto, §§ 2-33-301 -- 2-33-305, and 2-33-307; and Act 1216 of the Extended Session of 1976, and all laws amendatory thereto, §§ 2-33-306 and 2-33-307; carcass data information and feeder pig and feeder calf grading fees, as enacted by Act 454 of 1973, and all laws amendatory thereto, §§ 2-33-201 -- 2-33-206; livestock and poultry diagnostic service fees, § 2-33-111; state, county and district paid admission surcharges, § 2-33-115(a)(3); and small animal testing fees, as enacted by Act 770 of 1981, and all laws amendatory thereto, § 2-33-112;

(35) Arkansas Rice Research and Promotion Board assessments, § 2-20-507;

(36) Boiler inspection fees, certificates of competency, permits, examination fees, and licenses, as enacted by Act 494 of 1961, and all laws amendatory thereto, §§ 20-23-101 -- 20-23-105, 20-23-201 -- 20-23-203, 20-23-301 -- 20-23-313, and 20-23-401 -- 20-23-405;

(37) Motor vehicle insurance reporting penalties, § 27-22-107;

(38) Special motor-driven cycle and bicycle operators' licenses and certificates, as enacted by §§ 27-20-101 -- 27-20-116;

(39) Polygraph examiner's examination and license fees, as enacted by Act 413 of 1967, known as the "Polygraph Examiners Act", §§ 17-39-101 -- 17-39-109 and §§ 17-39-201 -- 17-39-214;

(40) Private investigator's application fees, agency fees, and license fees and security guard fines and fees, as enacted by Act 429 of 1977, known as the "Private Investigators and Private Security Agencies Act", and all laws amendatory thereto, §§ 17-40-101 -- 17-40-104, 17-40-201 -- 17-40-209, 17-40-301 -- 17-40-317, 17-40-325 -- 17-40-329, 17-40-335 -- 17-40-344, and 17-40-350 -- 17-40-352;

(41) Cosmetology board examination, registration, license, duplicate license, reinstatements, reciprocity, renewal and delinquent licenses and fees, as enacted by Act 358 of 1955, known as the "Cosmetology Act", and all laws amendatory thereto, §§ 17-26-101 -- 17-26-105, 17-26-201 -- 17-26-210, 17-26-301 -- 17-26-321, and 17-26-401 -- 17-26-418;

(42) That portion not declared to be "pledged revenues" for debt service on any certificates of indebtedness issued under Act 458 of 1983, §§ 22-3-1201 -- 22-3-1214, 22-3-1215 [repealed], 22-3-1216 -- 22-3-1219 and that portion not declared cash funds paid to the Arkansas Development Finance Authority for deposit in the Correction Facilities Privatization Account of the Correction Facilities Construction Fund, § 22-3-1210(c)(1)(A), of the Department of Correction's income from its farm operations, including sale of farm products and livestock, rental of farm properties, and payments from agencies of the state or federal government in connection with the farm operations, as enacted by Act 50 of the First Extraordinary Session of 1968, and all laws amendatory thereto, §§ 12-27-101 -- 12-27-105, 12-27-107 -- 12-27-109, 12-27-112, 12-27-113, 12-27-115, 12-27-118, 12-27-120, 12-28-102, 12-29-101 -- 12-29-104, 12-29-107, 12-29-112, 12-29-401, 12-30-301, 12-30-306, 12-30-401, 12-30-403, 12-30-405 -- 12-30-407, 12-30-408 [repealed], 16-93-101, 16-93-102, 16-93-201 -- 16-93-204, 16-93-601, 16-93-610, 16-93-701, 16-93-705, and 25-8-106;

(43) That portion not declared to be "pledged revenues" for debt service on any certificates of indebtedness issued under Act 458 of 1983, §§ 22-3-1201 -- 22-3-1214, 22-3-1215 [repealed], 22-3-1216 -- 22-3-1219, of the Department of Correction's sales, or dispositions of articles and products manufactured or produced by prison labor, as enacted by Act 473 of 1967, known as the "Prison-Made Goods Act of 1967", §§ 12-30-201 -- 12-30-207, 12-30-208 [repealed], 12-30-209 -- 12-30-214;

(44) Tuberculosis sanatorium institutional earnings from paying patients, including reimbursement from the federal government for services provided to eligible patients or any other source, as enacted by Act 378 of 1909, §§ 20-11-101, 20-11-201 -- 20-11-203, and 20-11-301;

(45) Interest on investments held in the University of Arkansas Endowment Fund, as enacted by Act 249 of 1945, and all laws amendatory thereto;

(46) Pest control service work examination fees, operators' licenses, and agents' and solicitors' registration fees, as enacted by Act 488 of 1975, known as the "Arkansas Pest Control Law", and all laws amendatory thereto, §§ 17-37-101 -- 17-37-107, 17-37-201, and 17-37-203 -- 17-37-221;

(47) Liming material registration fees, and vendor's licenses and inspection fees, as enacted by Act 353 of 1969, known as "The Arkansas Agricultural Liming Materials Act", §§ 2-19-301 -- 2-19-308;

(48) Fertilizer registration fees for manufacturers, jobbers, and manipulators of commercial fertilizers and fertilizer inspection fees, as enacted by Act 106 of 1951, and all laws amendatory thereto, §§ 2-19-201 -- 2-19-210;

(49) Nursery dealers, agents, and salesmen's license fees, as enacted by Act 683 of 1919, known as "The Arkansas Nursery Fraud Act of 1919", and all laws amendatory thereto, §§ 2-21-101 -- 2-21-113;

(50) Arkansas Feed Law of 1997 inspection fees, registration and license fees, §§ 2-37-101 et seq.;

(51) Pesticide registration fees, as enacted by Act 410 of 1975, known as the "Arkansas Pesticide Control Act", and all laws amendatory thereto, §§ 2-16-401 -- 2-16-419;

(52) Pesticide commercial, noncommercial, private and pilot applicators' license fees, pesticide dealers' license fees, and inspection and permit fees, as enacted by Act 389 of 1975, known as the "Arkansas Pesticide Use and Application Act", and all laws amendatory thereto, §§ 20-20-201 -- 20-20-225;

(53) Fees for seed inspection and certificate of inspection tags, as enacted by Act 73 of 1931, and all laws amendatory thereto, §§ 2-16-206 and 2-18-101 -- 2-18-108;

(54) Agricultural products inspection fees and inspectors' licenses, as enacted by Act 218 of 1925 known as "The Agricultural Products Grading Act of 1925", §§ 2-20-101 -- 2-20-117;

(55) Inspection, treatment, and certification fees for insect pests and diseases, plants, planting seeds, noxious weeds, or other substance, as enacted by Act 414 of 1917, known as "The Arkansas Plant Act of 1917", §§ 2-16-201 -- 2-16-214, and Act 519 of 1921, known as the "Arkansas Emergency Plant Act of 1921", §§ 2-16-301 -- 2-16-310;

(56) Annual license fees, application investigation fees, and fines from precious stones and precious metals buyers, as enacted by Act 87 of 1981, and all laws amendatory thereto, §§ 17-23-101 -- 17-23-104, and 17-23-201 -- 17-23-208;

(57) Uniform advance fees for clerks of circuit and chancery courts, as enacted by Act 16 of the First Extraordinary Session of 1981, and all laws amendatory thereto, §§ 21-6-403, 21-6-404 [repealed], 21-6-405 [repealed];

(58) Individual sewage disposal systems fees, as enacted by Act 402 of 1977, known as the "Arkansas Sewage Disposal Systems Act", and all laws amendatory thereto, §§ 14-236-101 -- 14-236-117;

(59) Hazardous waste transporter, generator, and management facility fees, as enacted by Act 5 of the First Extraordinary Session of 1980, and all laws amendatory thereto, and § 8-7-226;

(60) Nuclear planning and response fees collected from each utility in the state which operates one (1) or more nuclear generating facilities, as enacted by Act 67 of the First Extraordinary Session of 1980, and all laws amendatory thereto, §§ 20-21-401 -- 20-21-405;

(61) Brine taxes imposed upon all brine produced in the state for the purpose of bromine extraction, as enacted by Act 759 of 1979, and all laws amendatory thereto, § 26-58-301;

(62) Oil and Gas Commission fees, including oil and gas assessments, drilling permits, permits for plugging wells, and permits for each salt water well, all as enacted by Act 105 of 1939, and all laws amendatory thereto, §§ 15-71-101 -- 15-71-112, 15-72-101 -- 15-72-110, 15-72-205, 15-72-212, 15-72-216, 15-72-301 -- 15-72-324, and 15-72-401 -- 15-72-407, and the portion of taxes levied on salt water used in bromine production, as enacted by Act 136 of 1947, and all laws amendatory thereto, § 26-58-111(9);

(63) Arkansas State Game and Fish Commission licenses, fees, tags, permits and fines, all as authorized by Arkansas Constitution, Amendment 35, annual resident hunting and fishing licenses, §§ 15-42-104 and 15-42-110; all interest earned on Arkansas State Game and Fish Commission funds, § 15-41-110; all fees, compensation, or royalties for mineral leases or permits for lands held in the name of the Arkansas State Game and Fish Commission, § 22-5-809(c)(3); all assessed fines as set out in § 15-41-209; and forty-five percent (45%) of the additional one-eighth of one percent ( 1/8 of 1%) sales and use tax authorized by the Arkansas Constitution, Amendment 75;

(64) Plumbers' licenses, examination fees, permits, and registration fees, as enacted by Act 200 of 1951, and all laws amendatory thereto, §§ 17-38-101 -- 17-38-103, 17-38-201 -- 17-38-205, and 17-38-301 -- 17-38-310;

(65) Fees for medical identification tags and bracelets, as enacted by Act 433 of 1965, § 20-7-119;

(66) Hospital and institution license fees, §§ 20-9-201 -- 20-9-221;

(67) Seventy-five percent (75%) of child passenger protection act fines, as enacted by Act 749 of 1983, known as "The Child Passenger Protection Act", §§ 27-34-101 -- 27-34-107;

(68) Dairy products licenses, permits, and fees, as enacted by Act 114 of 1941, and all laws amendatory thereto, §§ 20-59-201 -- 20-59-247;

(69) Department of Health vital statistics fees and other specified fees, as set out in § 20-7-123;

(70) Arkansas Public Service Commission annual assessment fees, as enacted by Act 40 of 1945, §§ 23-2-101, 23-2-103 -- 23-2-105, 23-2-108, 23-2-109, 23-2-403, 23-2-406, 23-2-407, 23-2-409, 23-2-413, 23-2-418, 23-3-109, and 23-2-110, and Act 324 of 1935, §§ 14-200-101, 14-200-103 -- 14-200-108, 14-200-111, 23-1-101 -- 23-1-112, 23-2-301, 23-2-303 -- 23-2-308, 23-2-310, 23-2-312, 23-2-314 -- 23-2-316, 23-2-402, 23-2-404, 23-2-405, 23-2-408, 23-2-410 -- 23-2-412, 23-2-414 -- 23-2-421, 23-2-426, 23-2-428, 23-2-429, 23-3-101 -- 23-3-107, 23-3-112 -- 23-3-115, 23-3-118, 23-3-119, 23-3-201 -- 23-3-206, 23-4-102, 23-4-103, 23-4-105 -- 23-4-109, 23-4-205, 23-4-402 -- 23-4-405, 23-4-407 -- 23-4-418, 23-4-620 -- 23-4-634, and 23-18-101, and all laws amendatory thereto;

(71) Arkansas Public Service Commission miscellaneous fees, as enacted by Act 324 of 1935, §§ 14-200-101, 14-200-103 -- 14-200-108, 14-200-111, 23-1-101 -- 23-1-112, 23-2-301, 23-2-303 -- 23-2-308, 23-2-310, 23-2-312, 23-2-314 -- 23-2-316, 23-2-402, 23-2-404, 23-2-405, 23-2-408, 23-2-410 -- 23-2-412, 23-2-414 -- 23-2-421, 23-2-426, 23-2-428, 23-2-429, 23-3-101 -- 23-3-107, 23-3-112 -- 23-3-115, 23-3-118, 23-3-119, 23-3-201 -- 23-3-206, 23-4-102, 23-4-103, 23-4-105 -- 23-4-109, 23-4-205, 23-4-402 -- 23-4-405, 23-4-407 -- 23-4-418, 23-4-620 -- 23-4-634, and 23-18-101, and Act 262 of 1949, §§ 23-3-109, and 23-16-101 -- 23-16-106, and all laws amendatory thereto;

(72) Board of electrical examiners examination, license, and penalty fees, as enacted by Act 870 of 1979, §§ 17-28-101 et seq., 17-28-201 et seq., and 17-28-301 et seq., and Act 132 of 1981, and all laws amendatory thereto;

(73) Milk inspection fees as enacted by Act 587 of 1981, and all laws amendatory thereto, §§ 20-59-401 -- 20-59-407;

(74) Proceeds from sales of tax-forfeited lands, as enacted by Act 129 of 1929, and all laws amendatory thereto, § 26-37-210;

(75) Redemption of tax-forfeited lands and quitclaim deed fees, as enacted by Act 151 of 1891, and all laws amendatory thereto, § 26-37-310 et seq.;

(76) Commissioner of State Land fees, including patent fees, as enacted by Act 117 of 1883, § 21-6-203; deed fees, as enacted by Act 245 of 1931, § 22-5-408; donation deed fees, as enacted by Act 117 of 1883, § 21-6-203; field notes and plats fees, as enacted by Act 12 of 1881, §§ 22-5-701 and 22-5-702; and certificate of donation to forfeited land fees, as enacted by Act 117 of 1883, § 21-6-203; and those fees as specified in Act 886 of 1983, § 21-6-203;

(77) Proceeds from sales of islands, as enacted by Act 148 of 1971, §§ 22-6-201 and 22-6-203;

(78) Insurance filing fees, renewal fees, amendment fees, reinstatement fees, agents' licenses, brokers' licenses, solicitors' licenses, examination fees, adjusters' licenses, copies of documents and certificates of the commissioner, all as enacted by Act 148 of 1959, known as the "Arkansas Insurance Code", and all laws amendatory thereto, §§ 23-60-101 -- 23-60-108, 23-60-110, 23-61-101 -- 23-61-112, 23-61-201 -- 23-61-206, 23-61-301 -- 23-61-307, 23-61-401, 23-61-402, 23-62-101 -- 23-62-108, 23-62-201, 23-62-202, 23-62-203 [repealed], 23-62-204, 23-62-205, 23-63-101 -- 23-63-104, 23-63-201 -- 23-63-216, 23-63-301, 23-63-302, 23-63-401 -- 23-63-404 [repealed], 23-63-601 -- 23-63-613, 23-63-701, 23-63-801 -- 23-63-833, 23-63-835 -- 23-63-838, 23-63-901 -- 23-63-912, 23-63-1001 -- 23-63-1004, 23-64-101 -- 23-64-103, 23-64-202 -- 23-64-227, 23-64-228 [transferred], 23-64-229 [transferred], 23-65-101 -- 23-65-104, 23-65-201 -- 23-65-205, 23-65-301 -- 23-65-319, 23-66-201 -- 23-66-214, 23-66-301 -- 23-66-306, 23-66-308 -- 23-66-311, 23-66-313, 23-66-314, 23-68-101 -- 23-68-113, 23-68-115 -- 23-68-132, 23-69-101 -- 23-69-103, 23-69-105 -- 23-69-141, 23-69-143, 23-69-149 -- 23-69-156, 23-70-101 -- 23-70-124, 23-71-101 -- 23-71-116, 23-72-101 -- 23-72-122, 23-73-101 -- 23-73-116, 23-75-101 -- 23-75-120, 23-79-101 -- 23-79-106, 23-79-109 -- 23-79-128, 23-79-131 -- 23-79-134, 23-79-202 -- 23-79-210, 23-81-101 -- 23-81-117, 23-81-120 -- 23-81-136, 23-81-201 -- 23-81-213, 23-82-101 -- 23-82-118, 23-84-101 -- 23-84-111, 23-85-101 -- 23-85-131, 23-86-101 -- 23-86-104, 23-86-106 -- 23-86-109, 23-86-112, 23-87-101 -- 23-87-119, 23-88-101, 23-89-101, 23-89-102, 26-57-601 -- 26-57-605, 26-57-607, 26-57-608, and 26-57-610;

(79) Trademark and service-mark registration and assignment fees, as enacted by Act 81 of 1967, §§ 4-71-101 -- 4-71-114;

(80) Milk laboratory antibiotic drug testing program fees and fines, § 20-59-701 et seq.;

(81) Commercial vehicle temporary registration tag fees, as enacted by Act 1179 of 1975 (Extended Session of 1976) and all laws amendatory thereto, § 27-14-1306;

(82) Incorporation fees of railroads, street interurban, or other transportation companies, express companies, sleeping car companies, and private car companies, as enacted by Act 87 of 1911, § 23-11-102;

(83) Filing and recording fees for a charter of educational institutions and for filing and recording a certificate for a change of name or provisions of a charter, as enacted by Act 375 of 1911, §§ 6-2-101 -- 6-2-109, 6-2-111, and 6-2-112;

(84) Fees for filing articles of incorporation and issuing a certificate of incorporation of nonprofit corporations, filing an application of a foreign corporation for a certificate of authority to conduct affairs in this state and issuing a certificate of authority, and for other administrative functions, as enacted by Act 176 of 1963, known as the "Arkansas Nonprofit Corporation Act", §§ 4-28-201 -- 4-28-206, 4-28-209 -- 4-28-223;

(85) Articles of incorporation filing fees, articles of amendment filing fees, fees for certified copies, other miscellaneous filing fees and certificates, and for receiving service of process on behalf of a corporation, both foreign and domestic, and all other fees, as enacted by Act 576 of 1965, known as the "Arkansas Business Corporation Act", § 4-26-101 et seq.;

(86) Fees collected as authorized under the provisions of Act 185 of 1961, as amended, known as the "Uniform Commercial Code", § 4-1-101 et seq.;

(87) Fees collected for filing articles of incorporation for cooperative marketing associations, as enacted by Act 116 of 1921, as amended, known as the "Cooperative Marketing Act", §§ 2-2-401 -- 2-2-411, 2-2-413 -- 2-2-429;

(88) Fees collected from rural telephone cooperatives, as enacted by Act 51 of 1951, as amended, known as the "Rural Telecommunications Cooperative Act", §§ 23-17-201 -- 23-17-237;

(89) Annual license fees collected from rural electrification corporations, as enacted by Act 342 of 1937, as amended, known as the "Electric Cooperative Corporation Act", §§ 23-18-301 -- 23-18-322, 23-18-329 -- 23-18-331;

(90) Annual license fees collected from agricultural cooperative associations, as enacted by Act 153 of 1939, as amended, §§ 2-2-101 -- 2-2-124;

(91) Driver's license special fees for duplicate and identification licenses, as enacted by Act 311 of 1977, and all laws amendatory thereto, §§ 27-16-801, 27-16-805, and 27-16-806;

(92) Fees collected from mutual corporations, excepting insurance companies, having no capital stock for the filing of articles of incorporation, as enacted by Act 87 of 1911, § 4-26-1204;

(93) Abstracter's examining licenses and fees, as enacted by Act 109 of 1969, as amended, known as the "Abstractor Licensing Law", §§ 17-11-101 -- 17-11-103, 17-11-201 -- 17-11-204, 17-11-301 -- 17-11-306, 17-11-320 -- 17-11-324, and 17-11-340 -- 17-11-343;

(94) Driver education fees, as enacted by Act 531 of 1965, §§ 27-18-101, 27-18-102, 27-18-104 -- 27-18-106;

(95) Fees charged by the Veterinary Medical Examining Board for the various examinations, permits, licenses, and certificates issued by the board, as enacted by Act 650 of 1975, as amended, §§ 17-101-101 -- 17-101-103, 17-101-201 -- 17-101-203, and 17-101-301 -- 17-101-311;

(96) Receipts from timber severed from state-owned lands and rentals from trespassers on state lands, as enacted by Act 125 of 1931, §§ 22-5-602 and 22-5-603;

(97) Annual license fees received from septic tank cleaning businesses, as enacted by Act 71 of 1973, §§ 17-45-101 -- 17-45-105;

(98) Environmental compatibility and public need certificate initial filing fee, as enacted by Act 164 of 1973, and all laws amendatory thereto, §§ 23-18-501 -- 23-18-529;

(99) Arkansas Motor Vehicle Commission license fees, as enacted by Act 388 of 1975, known as the "Arkansas Motor Vehicle Commission Act", §§ 23-112-101 -- 23-112-103, 23-112-105, 23-112-201 -- 23-112-205, 23-112-301 -- 23-112-311, 23-112-401 -- 23-112-406, and 23-112-501 -- 23-112-509;

(100) Arkansas Public Service Commission inspection fees as authorized by section 8 of Act 285 of 1971, as amended, §§ 23-15-211, 23-15-214, and 23-15-216, for operating the Utility Safety Section;

(101) The additional severance tax levied on oil produced in this state, as enacted by section 4 of Act 310 of 1977, and all laws amendatory thereto, § 26-58-301;

(102) Arkansas Manufactured Home Commission registration fees and salesman's licenses, as enacted by Act 419 of 1977, known as "The Arkansas Manufactured Homes Standards Act", and all laws amendatory thereto, §§ 20-25-101 -- 20-25-112;

(103) Fees charged by the Department of Finance and Administration for removal of minerals or timber from state land as authorized by section 4 of Act 524 of 1975, as amended, § 22-5-808, but excluding the five dollars ($5.00) declared to be cash funds to be deposited to the Revenue Department Building Fund in accordance with Act 38 of 1961, First Extraordinary Session;

(104) All Arkansas Department of Environmental Quality fees, unless otherwise provided by law, § 8-1-105, landfill operator license fees, § 8-6-909, and that portion of new tire waste tire fees, § 8-9-404;

(105) Interstate fuel user marking fees, fines, and penalties, as enacted by Act 434 of 1979, §§ 26-55-708 and 26-55-709, and all laws amendatory thereto;

(106) Motor vehicle title application fees, fines, and penalties, as enacted by section 33 of Act 142 of 1949, as amended by Act 439 of 1979 and Act 40 of 1981, and all laws amendatory thereto, § 27-14-705;

(107) Transfers from the Securities Reserve Fund of interest earned on the average daily balance of the State Highway and Transportation Department Fund, including all internal accounts and funds thereof, as enacted by Act 438 of 1979, § 27-70-204, and all laws amendatory thereto;

(108) Arkansas Board of Dispensing Opticians examination, license, and registration fees, as enacted by Act 589 of 1981, known as the "Ophthalmic Dispensing Act", and all laws amendatory thereto, §§ 17-89-101 -- 17-89-106, 17-89-201 -- 17-89-204, 17-89-301 -- 17-89-307, 17-89-309, 17-89-310, 17-89-401 -- 17-89-404;

(109) Arkansas State Board of Nursing examination and license fees, as enacted by Act 432 of 1971, and all laws amendatory thereto, §§ 17-87-101 -- 17-87-105, 17-87-201 -- 17-87-204, 17-87-301 -- 17-87-309, and 17-87-401;

(110) Social work examination and license fees, as enacted by Act 1122 of 1999, known as the "Social Work Licensing Act", § 17-103-101 et seq., and all laws amendatory thereto;

(111) Brine production assessments as enacted by paragraph (d) of section 3 of Act 937 of 1979, as amended, § 15-76-306(d);

(112) Amusement attraction permits, as enacted by Act 837 of 1983, known as the "Amusement Ride and Amusement Attraction Safety Insurance Act", §§ 23-89-501 -- 23-89-508;

(113) Arkansas Beef Council cattle assessments, § 2-35-401 et seq.;

(114) Native wine taxes, as enacted by section 8 of Act 69 of 1935, and all laws amendatory thereto, § 3-5-409 and Act 906 of 1983, § 3-5-412;

(115) HAZMAT facility fees, § 12-84-106;

(116) The additional severance tax levied on coal, as enacted by Act 560 of 1983, § 26-58-112;

(117) The additional severance tax levied on stone and crushed stone, as enacted by Act 761 of 1983, § 26-58-113, and those portions of real estate transfer taxes, as enacted by Act 275 of 1971, and all laws amendatory thereto, §§ 26-60-105, 26-60-112;

(118) Five percent (5%) of the gross proceeds collected through set-off procedures from debtors who owe money to the State of Arkansas, as enacted by Act 372 of 1983, §§ 26-36-301 -- 26-36-320;

(119) The first designated portion of real estate transfer taxes for the continuing education of county and circuit clerks, as enacted by Act 275 of 1971, and all laws amendatory thereto, §§ 26-60-105, 26-60-112;

(120) That portion of driver's license reinstatement fees for the Department of Finance and Administration, Revenue Division, Office of Driver Services, § 5-65-119(2);

(121) Fifty percent (50%) of lease bonus payments for the lease or sale of oil, gas, and other minerals on lands as described in Act 167 of 1973 and amended by Act 662 of 1983;

(122) Agricultural consultant license fees, § 17-13-101 et seq.;

(123) Arkansas Public Art Program funds set aside within methods of finance for each new state building or major capital improvement on a state building, §§ 13-8-207 and 13-8-208;

(124) Three percent (3%) of local sales and use taxes, which are further identified as the three percent (3%) collection cost of the local sales and use taxes, imposed by cities, as enacted by Act 25 of the First Extraordinary Session of 1981, § 26-75-217, and all laws amendatory thereto, and imposed by counties, as enacted by Act 26 of the First Extraordinary Session of 1981, § 26-74-214, and all laws amendatory thereto;

(125) Prepaid funeral benefit organization application filing fees, annual report fees, and examination fees, as enacted by Act 156 of 1985, §§ 23-40-103 -- 23-40-106 and 23-40-108 -- 23-40-121;

(126) Those portions of vaccination fees imposed at livestock markets, as enacted by Act 150 of 1985 and Act 151 of 1985, § 2-40-206, and that portion of all fines and penalties resulting from arrests made or citations issued by Arkansas Livestock and Poultry Commission enforcement officers, § 2-33-113(b);

(127) Arkansas Wheat Promotion Board assessments, as enacted by Act 283 of 1985, §§ 2-20-601 -- 2-20-609;

(128) Driving test examination fees, § 27-16-801(a)(1)(C);

(129) Local exchange carriers access line surcharges, § 23-17-119;

(130) Asbestos removal license fees, §§ 20-27-1001 -- 20-27-1007;

(131) Mammography accreditation fees, § 20-15-1005;

(132) Abortion clinic license fees, § 20-9-302;

(133) Child care facility license fees, § 20-78-223;

(134) Income tax surcharge, § 6-20-312(c) [repealed];

(135) Dog racing taxes derived from the net proceeds of two (2) of the additional six (6) days of dog races, as authorized by § 23-111-504;

(136) Emergency medical services fees, § 20-13-211;

(137) Food service establishment and food salvager permits and fees, §§ 20-57-102 and 20-57-201 -- 20-57-204;

(138) Nursing home administrator license application and renewal fees, §§ 20-10-404 and 20-10-405;

(139) Home health care services agency license fees, § 20-10-812(b) and (c);

(140) Health maintenance organizations licenses and fees, § 23-76-127;

(141) Ionizing radiation license and registration fees, § 20-21-217;

(142) Public Water System Service Act fees, fines, and penalties, § 20-28-101 et seq.;

(143) Swimming pools regulation fees and fines, §§ 20-30-102 and 20-30-106;

(144) Department of Health public health laboratory fees, § 20-7-114;

(145) Additional real estate transfer tax, § 26-60-105(b);

(146) Two percent (2%) of gross receipts derived from the sale or rental on certain items related to tourism, § 26-52-1002;

(147) Breath testing instrument maintenance fees, § 20-7-128;

(148) That portion of commercial driver license application fees, § 27-23-118(a)(1); driver search fees, §§ 27-23-118(b)(1) and 27-23-118(c)(1); and all fines, forfeitures, and penalties collected under the Arkansas Uniform Commercial Driver License Act, § 27-23-118(d);

(149) That portion of commercial driver license application fees, § 27-23-118(a)(2);

(150) Commercial driver license examination fees, § 27-23-110(d) and temporary permit fees, § 27-16-803(c)(4); and that portion of commercial driver license application fees, § 27-23-118(a)(3);

(151) [Repealed];

(152) Turnpike project tolls, §§ 27-90-203 and 27-90-204;

(153) Regulated substance storage tank license fees and that portion of annual registration fees, § 8-7-802(b); civil penalties collected under § 8-7-806; and that portion of costs collected under § 8-7-807;

(154) Landfill disposal and transportation fees, § 8-6-606;

(155) That portion of driver's license reinstatement fees for the Department of Health, Blood Alcohol Program, §§ 5-65-119(1) and 5-65-304(c);

(156) Medicaid Fraud False Claims Act penalties, § 20-77-903(c);

(157) Child care facility fines and penalties, § 20-78-219;

(158) Fees for certifying blasters, § 20-27-1102;

(159) Pseudorabies Control and Eradication Program fees, § 2-40-1201;

(160) HVACR Licensing Board fees, § 17-33-204;

(161) Apprentice plumber program fees and payments, § 17-38-408;

(162) That portion of landfill disposal fees collected where a private industry bears the expense of operating and maintaining the landfill solely for the disposal of wastes generated by the industry, § 8-6-607(4);

(163) Those additional corporate income taxes as specified in § 26-51-205(c)(2);

(164) Those additional insurance premium taxes as specified in § 26-57-614;

(165) Imported waste tire fees and that portion of new tire waste tire fees, § 8-9-404;

(166) Commercial medical waste fees and fines, § 20-32-104;

(167) Additional landfill disposal and transportation fees, § 8-6-1003 et seq;

(168) That portion of annual registration fees for above-ground storage tanks, § 8-7-802(b);

(169) Fees received by the State Plant Board for licensing and regulation of public grain warehouses;

(170) Elder or disabled persons enhanced civil penalties, § 4-88-202;

(171) That portion of estate taxes collected in a calendar year that exceeds ten percent (10%) of the average annual estate taxes collected for a five-year period immediately preceding the calendar year or fifteen million dollars ($15,000,000), whichever is greater, § 26-59-122(a)(1);

(172) The additional fees assessed or imposed upon insurers, insurance agents, brokers, professional bail bond companies, and other licensees or registrants, § 23-61-711; the additional professional bail bond company fees, § 17-19-111; health maintenance organization fees, § 23-76-127(c); and employee leasing firm annual license fees, § 23-92-309;

(173) That portion of securities agents initial or renewal registration filing fees, § 23-42-304(a)(2) and (4);

(174) That portion of securities registration statement filing fees, § 23-42-404(b)(1);

(175) Background investigation fees, § 12-8-120;

(176) Criminal history information record search fees for noncriminal justice purposes, § 12-12-1012;

(177) Alcohol and drug abuse treatment program application fees and accreditation costs, § 20-64-906;

(178) [Repealed];

(179) Those additional corporate franchise taxes, § 26-54-104(b);

(180) Arkansas Conservation Corps fee-for-service project fees, § 11-13-105(c);

(181) Arkansas Economic Development Incentive Act of 1993 transfers from general revenues for financial incentive plans, § 15-4-1607;

(182) Alternative fuels taxes, fees, penalties, and interest, as enacted in § 26-62-101 et seq., known as the "Alternative Fuels Tax Law", and all laws amendatory thereto;

(183) Dog racing taxes derived from seventy-five percent (75%) of the net proceeds of six (6) additional days of dog races during each twelve-month period, § 23-111-515;

(184) Transporters of commercial medical waste vehicle inspection fees, § 20-32-105;

(185) Motor vehicle accident report and records of traffic violations photostatic or written copies fees, § 27-53-210;

(186) Unregistered motor vehicle fines, § 27-14-314, and motor vehicle liability insurance fines, § 27-22-103;

(187) Rail and other carriers fees, § 23-16-105;

(188) Life care provider application filing fees, § 23-93-206;

(189) Additional marriage license fees, § 9-30-109;

(190) Used motor vehicle dealer license fees, § 23-112-608, and that portion of used motor vehicle dealer fines, § 23-112-603(c)(1);

(191) Insurance Fraud Investigation Division administrative and regulatory fees and penalties, §§ 23-100-104 and 23-100-105;

(192) Ninety percent (90%) of the additional cigarette and tobacco products tax, § 26-57-1101 et seq., as determined by § 26-57-1108;

(193) One-eighth of one cent ( 1/8¢) gross receipts and compensating taxes, Arkansas Constitution, Amendment 75;

(194) Waterworks operators fees, § 17-51-106;

(195) Equine Infectious Anemia Control and Eradication Program fees, § 2-40-826;

(196) Arkansas Corn and Grain Sorghum Promotion Board assessments, § 2-20-805;

(197)
DNA Detection of Sexual and Violent Offenders Act fines, § 12-12-1118; and

(198) Sex and Child Offender Registration Act of 1997 fines, § 12-12-910.

HISTORY: Acts 1973, No. 808, § 8; 1975, No. 863, § 5; 1979, No. 1027, §§ 2, 10; 1983, No. 222, §§ 3, 4; 1983, No. 801, § 1; 1985, No. 65, §§ 3, 4; 1985, No. 613, § 1; 1985, No. 888, § 13; A.S.A. 1947, § 13-503.7; Acts 1987, No. 792, §§ 2, 3; 1989, No. 551, §§ 2, 3; 1989, No. 821, § 6; 1991, No. 76, §§ 1, 2; 1991, No. 765, § 5; 1993, No. 324, § 2; 1993, No. 1072, §§ 3, 4; 1993, No. 1073, § 29; 1995, No. 270, §§ 2, 3; 1995, No. 369, § 2; 1997, No. 156, § 2; 1997, No. 298, §§ 2, 13; 1997, No. 974, § 18; 1997, No. 1071, § 2; 1999, No. 15, § 4; 1999, No. 282, §§ 3, 4, 14; 1999, No. 1122, § 3; 1999, No. 1164, § 168.

NOTES:
A.C.R.C. NOTES. Acts 1945, No. 249, provided:
"Whereas, by acceptance of the grant of the United States, as provided by the Act of Congress, approved July 2, 1862, entitled, "An Act donating public lands to the several states and territories which may provide colleges for the benefit of agriculture and the mechanic arts", the State of Arkansas convenanted to invest the moneys, derived from the grants of land so received, in interest bearing obligations of the State of Arkansas or the United States of America; and
"Whereas, the University of Arkansas was designated as the college to receive the endowment, which is now represented by $132,666.67 principal amount of bonds of the State of Arkansas, known as University of Arkansas Endowment Fund Bonds maturing on July 1, 1947; and
"Whereas, by reason of the improved financial condition of the State of Arkansas, the time is opportune (1), to reduce the bonded debt of the State of Arkansas and (2), to invest the University of Arkansas Endowment Fund in long term interest-bearing direct obligation bonds of the United States;
"NOW THEREFORE,

"
Be It Enacted by the General Assembly of the State of Arkansas:
"Section 1. The State Board of Fiscal Control, hereinafter referred to as the Board, without giving prior notice by publication of its intention of so doing, is hereby authorized and empowered, by use of the moneys and for the purposes hereafter in this Act provided, to subscribe to and purchase not to exceed $132,700.00 principal amount of direct interest bearing obligations of the United States of America from the United State's Treasury Department, or its duly authorized fiscal officers, in those instances where the securities are part of a new issue and the original offering price does not exceed par and accrued interest.
"Whenever the balance in the Excess Par Value Bond Account, which shall hereafter be known as the Securities Reserve Fund, shall exceed $100,000.00, the Board may, by resolution duly adopted, use not to exceed $132,700.00 of the said balance in excess of $100,000.00 in making the purchases hereinbefore provided.
"All obligations purchased under the provisions of this Act shall be delivered to the Treasurer of State and shall, by said Treasurer, be held in trust in and for the benefit of the University of Arkansas Endowment Fund. Upon receipt of the obligations so purchased by the Board, the Treasurer of State shall cancel, by perforation, an equal principal amount of University of Arkansas Endowment Fund Bonds. Provided, after retirement in the manner hereinbefore provided of all other bonds of the issue, the Treasurer of State shall cancel University of Arkansas Endowment Fund bond number 133 for $666.67 principal amount, upon receipt from the Board of $700.00 principal amount of United States Treasury bonds.
"All interest received on the obligations so purchased shall, by the Treasurer of State, be deposited in the University of Arkansas Fund, and shall be expended for the use and benefit of the University of Arkansas as its Board of Trustees shall direct. In the event the interest derived each year from investments in the University of Arkansas Endowment Fund amounts to less than $6,633.34, the Treasurer of State shall transfer from the State Sinking Fund to the University of Arkansas fund such amounts as may be necessary to make the total income from interest, plus the transfers thus provided for, equal $6,633.34.
"Section 2. For the purpose of making all or a portion of the moneys available for investment, as herein provided, the Treasurer of State shall, upon resolution of the Board, transfer from the State Sinking Fund to the Securities Reserve Fund such amounts as may be set forth in said resolution. Provided, the Board shall not authorize the transfer of any moneys from the State Sinking Fund to the Securities Reserve Fund which are pledged for the payment of the principal of or interest on any other bonds which are a charge against the said State Sinking Fund.
"Section 3. There is hereby appropriated, to be payable from any moneys in the Securities Reserve Fund in excess of $100,000.00, for the fiscal year beginning July 1, 1945 and ending June 30, 1946, to be used in purchasing United States Treasury Bonds for the purposes herein provided, the sum of $132,700.00. Provided, any unexpended balance in the appropriation on June 30, 1946 shall, upon resolution of the Board, be brought forward and made available for such purposes during the fiscal year beginning July 1, 1946 and ending June 30, 1947.
"Section 4. In the event all University of Arkansas Endowment Fund Bonds shall not have been retired on or before July 1, 1947, the maturity date thereof, the Board shall, from time to time, extend the maturity date of such outstanding bonds, but no single extension shall be for more than one year.
"Section 5. The following laws or parts of laws enacted by the General Assembly of the State of Arkansas are hereby repealed; Act 149, approved May 23, 1901 (Sections 13132, 13133 and 13134 of Pope's Digest); Act 208, approved May 23, 1901 (Sections 13135 and 13136 of Pope's Digest); and, Act 252, approved March 16, 1917 (Sections 11966 to 11970, inclusive, of Pope's Digest)."
Acts 1945, No. 249 was approved March 20, 1945.
Acts 1997, No. 1219, § 2, provided: ""Arkansas Department of Pollution Control & Ecology' renamed to "Arkansas Department of Environmental Quality'.
(a) Effective March 31, 1999, the "Arkansas Department of Pollution Control & Ecology' or "Department,' as it is referred to or empowered throughout the Arkansas Code Annotated, is hereby renamed. In its place, the "Arkansas Department of Environmental Quality' is hereby established, succeeding to the general powers and responsibilities previously assigned to the Arkansas Department of Pollution Control & Ecology. The Director of the Arkansas Department of Pollution Control & Ecology is directed to identify and revise all inter-agency agreements, financial instruments, funds, and other necessary legal documents in order to effect this change by March 31, 1999.
"(b) Nothing in this Act shall be construed as impairing the powers and authorities of the Arkansas Department of Pollution Control and Ecology prior to the effective date of the name change."

PUBLISHER'S NOTES. Acts 1995, No. 725, referred to in (9), appears in the Appendix to this title. Acts 1995, No. 725, § 7, is codified as § 27-14-606.
Acts 1989, No. 241, referred to in (22), is codified as §§ 27-16-801 and 27-23-101--27-23-124.
Acts 1913, No. 113, referred to in (28) is now codified only as § 16-110-406. The rest of the codified provisions were repealed in 1997.
Acts 1981, No. 770, referred to in (34), is codified as §§ 2-33-112, 2-35-214, 2-36-304 and 2-40-507.
The versions of sections 12-29-102 and 16-93-201, as enacted or amended by Acts 1968 (1st Ex. Sess.), No. 50, referred to in (42), have been repealed.
The version of § 2-37-101 et seq. referred to in (49) was repealed in 1997.
Acts 1980 (1st Ex. Sess.), No. 5, referred to in subdivision (59), was superseded by § 19-6-434.
Identical Acts 1985, Nos. 150 and 151, referred to in subdivision (126), are codified as §§ 2-33-108, 2-40-202 -- 2-40-209, and 2-40-502.

AMENDMENTS. The 1993 amendment by No. 324 added (158).
The 1993 amendment by No. 1072, in (3), inserted "including the nine ... levied by § 26-56-301(a)," substituted "§ 26-56-502 (a)" for "§ 26-56-502" and inserted "the additional four ... levied by §§ 26-55-1201(a) and 26-56-601"; rewrote (4); added "and all fees, compensation, or royalties for mineral leases or permits for lands held in the name of the Arkansas State Game and Fish Commission, as enacted by Act 537 of 1991, § 22-5-809(c)(3)" at (63); added "and landfill operator license fees, § 8-6-909" at (104); deleted former (123) and inserted present (123); added "and that portion of all fines and penalties resulting from arrests made or citations issued by Arkansas Livestock and Poultry Commission enforcement officers, § 2-33-113(b)" at (126); deleted former (128) and inserted present (128); in (152), substituted "That portion of additional court costs" for "Additional court costs of fifty dollars ($50.00)" and substituted "5-64-709" for "5-64-709(a)"; made stylistic changes in (3) and (63); and added (159)-(168).
The 1993 amendment by No. 1073 added (169).
The 1995 amendment by No. 270, substituted "§ 26-61-101 et seq., and timber management plan fees, § 15-31-111" for "§§ 26-61-101, 26-61-103 -- 26-61-105, and 26-61-107 -- 26-61-110" in (6); substituted "nursing homes" for "institution" and "§§ 20-9-201 -- 20-9-221" for "known as the "Division of Hospitals and Nursing Homes Act', §§ 20-9-201 -- 20-9-221 and 20-10-213 -- 20-10-228" in (66); substituted "Five percent (5%)" for "Fifteen percent (15%)" in (118); inserted "and transportation" in (154) and (167); added "and 5-65-304(c)" in (155); added "Imported" and "and that portion of new tire waste tire fees" in (165); rewrote (59), (69), (80), (104) and (144); added (170)-(192); and made stylistic changes.
The 1995 amendment repealed (63).
The 1997 amendment by No. 156 added (193).
The 1997 amendment by No. 298 rewrote (9), (34), (42), (63), (67), (115), (120), (129), (131), (134), (152), (155), (156), (177); and repealed (191) and (192).
The 1997 amendment by No. 974 repealed (37).
The 1997 amendment by No. 1071 added the exception in (27).
The 1999 amendment by No. 15 repealed (178).
The 1999 amendment by No. 282 rewrote (6); inserted "and use" in (17); substituted "Department of Community Punishment" for "Department of Correction" in (31); rewrote (37), (50), and (72); substituted "§ 20-78-223" for "20-9-403" in (133); rewrote (191) and (192); added (194)-(198); and repealed (151).
The 1999 amendment by No. 1122 rewrote (110).
The 1999 amendment by No. 1164 substituted "Arkansas Department of Environmental Quality" for "Department of Pollution Control and Ecology" in (104).

NOTES APPLICABLE TO ENTIRE SUBCHAPTER

EFFECTIVE DATES. Acts 1973, No. 808, § 17: Apr. 16, 1973. Emergency clause provided: "It has been found and is hereby declared by the General Assembly of the State of Arkansas that in order to properly define, describe and classify all revenues and other income which are required to be deposited in the State Treasury, it is necessary that the provisions of this Act become effective immediately. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the preservation of the public peace, health and safety shall take effect and be in full force from and after its passage and approval."
Acts 1975, No. 863, § 9: July 1, 1975. Emergency clause provided: "It is hereby found and determined by the Seventieth General Assembly that the provisions of this Act are necessary for the proper administration of vital state programs, and that to delay the provisions of this Act beyond July 1, 1975 would work irreparable harm on the Securities Division. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1975."
Acts 1979, No. 1027, § 11: July 1, 1979. Emergency clause provided: "It is hereby found and determined by the General Assembly that it is necessary that the aforementioned amendments will provide for a more efficient administration of state revenue. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the preservation of the public peace, health and safety shall take effect and be in full force from and after July 1, 1979."
Acts 1983, No. 222, § 7: July 1, 1983. Emergency clause provided: "It is hereby found and determined by the Seventy-Fourth General Assembly that various laws have been enacted since the passage of the Revenue Classification Law which have changed or created various revenues collected by the State, and that this amendment to the Revenue Classification Law is necessary in order to reflect the various taxes, licenses, fees and other revenues levied and collected for the support of and use by State Government as they currently exist and from which appropriations which become effective July 1, 1983 have been made by the Seventy-Fourth General Assembly. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1983."
Acts 1983, No. 801, § 18: July 1, 1983. Emergency clause provided: "It is hereby found and determined by the Seventy-Fourth General Assembly that the amendments to the Revenue Stabilization law are essential to the continued operation of State government; therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1983."
Acts 1985, No. 65, § 8: July 1, 1985. Emergency clause provided: "It is hereby found and determined by the Seventy-Fifth General Assembly that various laws have been enacted since the passage of the Revenue Classification Law which have changed or created various revenues collected by the State, and that this amendment to the Revenue Classification Law is necessary in order to reflect the various taxes, licenses, fees and other revenues levied and collected for the support of and use by State Government as they currently exist and from which appropriations which become effective July 1, 1985, have been made by the Seventy-Fifth General Assembly. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1985."
Acts 1985, No. 888, § 26: July 1, 1985. Emergency clause provided: "It is hereby found and determined by the Seventy-Fifth General Assembly that the amendments to the Revenue Stabilization Law are essential to the continued operation of State government; therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1985. Provided, however, that Sections 18, 20 and 21 of this Act shall become effective from and after the passage and approval of this Act."
Acts 1987, No. 792, § 7: July 1, 1987. Emergency clause provided: "It is hereby found and determined by the Seventy-Sixth General Assembly that various laws have been enacted since the passage of the Revenue Classification Law which have changed or created various revenues collected by the State, and that this amendment to the Revenue Classification Law is necessary in order to reflect the various taxes, licenses, fees and other revenues levied and collected for the support of and use by State Government as they currently exist and from which appropriations which become effective July 1, 1987, have been made by the Seventy-Sixth General Assembly. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1987."
Acts 1989, No. 551, § 8: July 1, 1989. Emergency clause provided: "It is hereby found and determined by the Seventy-Seventh General Assembly, that various laws have been enacted since the passage of the Revenue Classification Law which have changed or created various revenues collected by the State, and that this amendment to the Revenue Classification Law is necessary in order to reflect the various taxes, licenses, fees and other revenues levied and collected for the support of and use by State Government as they currently exist and from which appropriations which become effective July 1, 1989, have been made by the Seventy-Seventh General Assembly. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1989."
Acts 1991, No. 76, § 8: July 1, 1991. Emergency clause provided: "It is hereby found and determined by the Seventy-Eighth General Assembly, that various laws have been enacted since the passage of the Revenue Classification Law which have changed or created various revenues collected by the State, and that this amendment to the Revenue Classification Law is necessary in order to reflect the various taxes, licenses, fees and other revenues levied and collected for the support of and use by State Government as they currently exist and from which appropriations which become effective July 1, 1991, have been made by the Seventy-Eighth General Assembly. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1991."
Acts 1991, No. 765, § 22: Mar. 26, 1991. Emergency clause provided: "It is hereby found and determined by the General Assembly that cities and counties are faced with financial crises with reference to having sufficient tax resources to fund capital improvements of a public nature and to provide services to their inhabitants; that under current law the counties are restricted to a one percent (1%) levy and the cities are restricted to a one-half of one percent (0.05%) or one percent (1%) levy; that the ability to levy a sales and use tax computed on one-fourth of one percent, one-half of one percent, three-fourths of one percent, or one percent (1%) would be a feasible alternative for some cities and counties in financial crisis; and that such financial crises constitute such an emergency that the immediate passage of this act is necessary in order to provide financial relief to the cities and counties. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall take effect and be in full force from and after its passage and approval."
Acts 1993, No. 1072, § 17: July 1, 1993. Emergency clause provided: "It is hereby found and determined by the Seventy-Ninth General Assembly, that various laws have been enacted since the passage of the Revenue Classification Law which have changed or created various revenues collected by the State, and that this amendment to the Revenue Classification Law is necessary in order to reflect the various taxes, licenses, fees and other revenues levied and collected for the support of and use by State Government as they currently exist and from which appropriations which become effective July 1, 1993 have been made by the Seventy-Ninth General Assembly. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1993."
Acts 1993, No. 1073, § 35: July 1, 1993. Emergency clause provided: "It is hereby found and determined by the Seventy-Ninth General Assembly that the distribution of general revenues and the creation of the various funds and fund accounts are essential to be in force at the beginning of the state fiscal year and that in the event that the General Assembly extends beyond the sixty day limit, the effective date of this act would not begin at that time creating confusion and not permitting the agencies to implement those programs as approved by the General Assembly. Therefore an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1993."
Acts 1995, No. 270, § 19: July 1, 1995. Emergency clause provided: "It is hereby found and determined by the Eightieth General Assembly, that various laws have been enacted since the passage of the Revenue Classification Law which have changed or created various revenues collected by the State, and that this amendment to the Revenue Classification Law is necessary in order to reflect the various taxes, licenses, fees and other revenues levied and collected for the support of and use by State Government as they currently exist and from which appropriations which become effective July 1, 1995 have been made by the Eightieth General Assembly. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1995."
Acts 1995, No. 369, § 7: Feb. 20, 1995. Emergency clause provided: "It is hereby found and determined by the General Assembly that Amendment Number 35 to the Arkansas Constitution requires the General Assembly to establish the maximum annual resident hunting and fishing license fees that may be charged by the Arkansas Game and Fish Commission; that Amendment 35 to the Arkansas Constitution requires all fees, monies, or funds arising from all sources by the operation and transaction of the Arkansas Game and Fish Commission to be deposited in the Game Protection Fund in the State Treasury; and that the immediate passage of this Act is necessary to enable the Arkansas Game and Fish Commission to efficiently operate the game and fish program. Therefore, an emergency is hereby declared to exist and this Act, being immediately necessary for the preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval."
Acts 1997, No. 156, § 7: July 1, 1997. Emergency clause provided: "It is hereby found and determined by the Eighty-First General Assembly, that the Constitution of the State of Arkansas was amended by Amendment 75; that Amendment 75 enacted an additional sales tax of 1/8¢ that was divided between the Game and Fish Commission, the Arkansas Department of Parks and Tourism, the Department of Arkansas Heritage, and Keep Arkansas Beautiful; that administrative legislation must be effective July 1, 1997 when the tax becomes effective so that the intent of the amendment is carried out. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1997."
Acts 1997, No. 298, § 18: July 1, 1997. Emergency clause provided: "It is hereby found and determined by the Eighty-First General Assembly, that various laws have been enacted since the passage of the Revenue Classification Law which have changed or created various revenues collected by the State, and that this amendment to the Revenue Classification Law is necessary in order to reflect the various taxes, licenses, fees and other revenues levied and collected for the support of and use by State Government as they currently exist and from which appropriations which become effective July 1, 1997 have been made by the Eighty-First General Assembly. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1997."
Acts 1997, No. 974: January 1, 1998.
Acts 1997, No. 1071, § 7: Apr. 3, 1997. Emergency clause provided: "It is found and determined by the General Assembly that the current funding provisions of the State Police Retirement System are inadequate and that the benefit provisions of the system must be modified to restore the financial security of the system; that this act accomplishes those purposes; that this act should go into effect as soon as possible. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto."
Acts 1999, No. 282, § 18: Jul. 1, 1999. Emergency clause provided: "It is hereby found and determined by the Eighty-second General Assembly that various laws have been enacted since the passage of the Revenue Classification Law which have changed or created various revenues collected by the State, and that this amendment to the Revenue Classification Law is necessary in order to reflect the various taxes, licenses, fees and other revenues levied and collected for the support of and use by State Government as they currently exist and from which appropriations which become effective July 1, 1999 have been made by the Eighty-Second General Assembly. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on July 1, 1999."

 


TITLE 19. PUBLIC FINANCE
CHAPTER 6. REVENUE CLASSIFICATION LAW
SUBCHAPTER 4. SPECIAL REVENUE FUNDS

GO TO THE ARKANSAS CODE ARCHIVE DIRECTORY

Ark. Stat. Ann. § 19-6-447 (2001)
§ 19-6-447.
DNA Detection Fund


The
DNA Detection Fund shall consist of those special revenues as specified in subdivision (197) of § 19-6-301, there to be used for the administration of the DNA Detection of Sexual and Violent Offenders Act, § 12-12-1101 et seq.

HISTORY: Acts 1999, No. 282, § 10.

NOTES:
PUBLISHER'S NOTES. This section, concerning the Alcohol and Drug Safety Fund, was repealed by Acts 1995, No. 1032, § 9. The section was derived from Acts 1973, No. 808, § 14; 1985, No. 65, § 7; A.S.A. 1947, § 13-503.13; Acts 1987, No. 792, § 4.
For present law, see §§ 19-5-307 and 19-5-1083.

USER NOTE: For more generally applicable notes, see notes under the first section of this part, article, subchapter, chapter, subtitle, or title.



ARKANSAS ADVANCE LEGISLATIVE SERVICE
STATENET
Copyright © 2001 by Information for Public Affairs, Inc.

ARKANSAS 83RD REGULAR SESSION

ACT 175

SENATE BILL 317

2001 Ark. ALS 175; 2001 Ark. Acts 175; 2001 Ark. SB 317
SYNOPSIS: A BILL -- For An Act To Be Entitled AN ACT TO REAPPROPRIATE THE BALANCES OF CAPITAL IMPROVEMENT APPROPRIATIONS FOR THE STATE CRIME LABORATORY; AND FOR OTHER PURPOSES. Subtitle AN ACT FOR THE STATE CRIME LABORATORY REAPPROPRIATION.

NOTICE:
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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:

[*1] SECTION 1. REAPPROPRIATION - GENERAL IMPROVEMENT. There is hereby appropriated, to the State Crime Laboratory, to be payable from the General Improvement Fund or its successor fund or fund accounts, for the State Crime Laboratory, the following:

(A) Effective July 1, 2001, the balance of the appropriation provided in
Section 1 of Act 360 of 1999, for the acquisition of fixtures and equipment
for a regional Southwest Arkansas Crime Laboratory, in a sum not to exceed
............................$ 600,000.

(B) Effective July 1, 2001, the balance of the appropriation provided in
Item (A) of Section 1 of Act 547 of 1999, for costs associated with the
renovation and remodeling of Crime Laboratory facilities including the
purchase of equipment, in a sum not to exceed.....................$ 3,310,162.

(C) Effective July 1, 2001, the balance of the appropriation provided in
Item (B) of Section 1 of Act 547 of 1999, for costs associated with the
modification of the Pathological Waste Incinerator, in a sum not to exceed
............................$ 800,000.

(D) Effective July 1, 2001, the balance of the appropriation provided in
Item (A) of Section 1 of Act 693 of 1999, for the acquisition of fixtures and
equipment for a regional Northwest Arkansas Crime Laboratory, in a sum not to
exceed......................$ 600,000.

(E) Effective July 1, 2001, the balance of the appropriation provided in
Item (A) of Section 3 of Act 1213 of 1999, for the purchase of equipment for
the Western Regional Drug Laboratory, in a sum not to exceed........$ 190,000.

(F) Effective July 1, 2001, the balance of the appropriation provided in Item (A) of Section 1 of Act 152 of 1999, for construction, renovation, equipping, expansions and relocation costs of facilities of the State Crime Laboratory and/or the Arkansas State Police, in a sum not to exceed..$ 90,000.

(G) Effective July 1, 2001, the balance of the appropriation provided in
Item (E) of Section 1 of Act 152 of 1999, for costs associated with the
construction and renovation of State Crime Laboratory facilities at Number 3
Natural Resources Drive, in a sum not to exceed.....................$ 872,175.

(H) Effective July 1, 2001, the balance of the appropriation provided in
Item (C) of Section 1 of Act 152 of 1999, for construction, renovation,
equipment purchases and replacement, and implementation of
DNA SECTION, in a
sum not to exceed.............................$ 756,000.

(.

HISTORY:

Approved by the Governor February 12, 2001

SPONSOR: Joint Budget Committee


ARKANSAS ADVANCE LEGISLATIVE SERVICE
STATENET
Copyright © 2001 by Information for Public Affairs, Inc.

ARKANSAS 83RD REGULAR SESSION

ACT 202

HOUSE BILL 1188

2001 Ark. ALS 202; 2001 Ark. Acts 202; 2001 Ark. HB 1188
SYNOPSIS: A BILL -- For An Act To Be Entitled AN ACT TO AMEND VARIOUS SUBSECTIONS OF ARKANSAS CODE 12-12-906 REGARDING THE REGISTRATION OF SEX OFFENDERS; AND FOR OTHER PURPOSES. Subtitle AN ACT TO AMEND VARIOUS SUBSECTIONS OF ARKANSAS CODE 12-12-906 REGARDING THE REGISTRATION OF SEX OFFENDERS.

NOTICE:
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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:

[*1] SECTION 1. Arkansas Code 12-12-906(a)(1), concerning the registration of sex offenders, is amended to read as follows:

(a)(1) [A> (A) <A] At the time of an offender's adjudication of guilt, the sentencing court shall require the offender to complete the sex offender registration form in the format prepared by the Director of the Arkansas Crime Information Center pursuant to Section 12-12-908.

[A> (B)(1) FOR OFFENDERS WHO ARE SENTENCED TO A TERM OF INCARCERATION IN THE DEPARTMENT OF CORRECTION, IT SHALL BE THE RESPONSIBILITY OF THE DEPARTMENT OF CORRECTION TO ASSURE THAT THOSE OFFENDERS COMPLETE THE SEX OFFENDER REGISTRATION FORM. <A]

[A> (2) FOR OFFENDERS WHO ARE ADJUDICATED GUILTY BUT NOT SENTENCED TO A TERM OF INCARCERATION IN THE DEPARTMENT OF CORRECTION, IT SHALL BE THE RESPONSIBILITY OF THE DEPARTMENT OF COMMUNITY PUNISHMENT TO ASSURE THAT THOSE OFFENDERS COMPLETE THE SEX OFFENDER REGISTRATION FORM. <A]

[*2] SECTION 2. Arkansas Code 12-12-906(c)(1), concerning the registration of sex offenders, is amended to read as follows:

(c)(1) When registering an offender as provided in subsection (a) of this section, the Department of Correction, the Department of Community Punishment, the Department of Human Services, [D> the sentencing court, <D] or the local law enforcement agency having jurisdiction shall:

(A) Inform the offender of the duty to register and obtain the information required for registration as described in Section 12-12-908;

(B) Inform the offender that if the offender changes address, the offender shall give the new address to the Arkansas Crime Information Center in writing no later than ten (10) days before the offender establishes residency or is temporarily domiciled at the new address;

(C) Inform the offender that if the offender changes address to another state, the offender shall register the new address with the Arkansas Crime Information Center and with a designated law enforcement agency in the new state not later than ten (10) days before the offender establishes residence or is temporarily domiciled in the new state, if the new state has a registration requirement;

(D)(i) Obtain fingerprints and a photograph of the offender if these have not already been obtained in connection with the offense that triggered registration.

(ii) If the registration is performed by the sentencing court, the arresting law enforcement agency shall provide the court with a copy of the fingerprints and a photograph of the offender;

[A> (III)(A) ANY OFFENDER REQUIRED TO REGISTER AS A SEX OFFENDER MUST PROVIDE A
DNA SAMPLE (BLOOD SAMPLE OR SALIVA SAMPLE) UPON REGISTERING, IF A SAMPLE HAS NOT ALREADY BEEN PROVIDED TO THE ARKANSAS STATE CRIME LABORATORY. <A]

[A> (B) ANY OFFENDER REQUIRED TO REGISTER AS A SEX OFFENDER WHO IS ENTERING THE STATE OF ARKANSAS MUST PROVIDE A
DNA SAMPLE (BLOOD SAMPLE OR SALIVA SAMPLE) UPON REGISTRATION AND MUST PAY THE MANDATORY FEE OF TWO HUNDRED FIFTY DOLLARS ($ 250) TO THE DNA DETECTION FUND ESTABLISHED UNDER ACT 737 OF 1997. <A]

(E) Require the offender to complete the entire registration process, including, but not limited to, requiring the offender to read and sign a form stating that the duty of the person to register under this subchapter has been explained;

(F) Inform the offender that if the offender's address changes due to an eviction, natural disaster or any other unforeseen circumstance, the offender shall give the new address to the Arkansas Crime Information Center in writing no later than five (5) business days after the offender establishes residency; and

(G) Inform an offender who has been granted probation, that failure to comply with the provisions of this subchapter shall be grounds for revocation of the offender's probation.

[*3] SECTION 3. Arkansas Code 12-12-906(d) ), concerning the registration of sex offenders, is amended to read as follows:

(d) When registering or updating the registration file of a sexually violent predator, the Department of Correction, the Department of Community Punishment, the Department of Human Services, [D> the sentencing court, <D] or the local law enforcement agency having jurisdiction shall, in addition to the requirements of subdivision (c)(1) or (2) of this section, obtain documentation of any treatment received for the mental abnormality or personality disorder of the sexually violent predator.


HISTORY:

Approved by the Governor February 9, 2001

SPONSOR: Representative Hunt



ARKANSAS ADVANCE LEGISLATIVE SERVICE
STATENET
Copyright © 2001 by Information for Public Affairs, Inc.

ARKANSAS 83RD REGULAR SESSION

ACT 218

HOUSE BILL 1376

2001 Ark. ALS 218; 2001 Ark. Acts 218; 2001 Ark. HB 1376
SYNOPSIS: A BILL -- For An Act To Be Entitled AN ACT TO AMEND ARKANSAS CODE 12-12-1109 TO ADD RESIDENTIAL AND COMMERCIAL BURGLARY TO THOSE OFFENSES WHICH REQUIRE A DNA SAMPLE; AND FOR OTHER PURPOSES. Subtitle AN ACT TO AMEND ARKANSAS CODE 12-12-1109 TO ADD RESIDENTIAL AND COMMERCIAL BURGLARY TO THOSE OFFENSES WHICH REQUIRE A DNA SAMPLE.

NOTICE:
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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:

[*1] SECTION 1. Arkansas Code 12-12-1109, concerning
DNA samples is amended to read as follows:

12-12-1109.
DNA sample required upon adjudication of guilt.

(a) Adjudication of guilt after August 1, 1997. A person who is adjudicated guilty or adjudicated delinquent for a sex offense, a violent offense, [A> RESIDENTIAL OR COMMERCIAL BURGLARY, <A] or a repeat offense on or after August 1, 1997, shall have a deoxyribonucleic acid (
DNA) sample drawn as follows:

(1)(A) A person who is adjudicated guilty or adjudicated delinquent for a sex offense, a violent offense, [A> RESIDENTIAL OR COMMERCIAL BURGLARY, <A] or a repeat offense and sentenced to a term of confinement for that sex offense, violent offense, [A> RESIDENTIAL OR COMMERCIAL BURGLARY, <A] or repeat offense shall have a deoxyribonucleic acid (
DNA) sample drawn upon intake to a prison, jail, juvenile detention facility, or any other detention facility or institution.

(B) If the person is already confined at the time of sentencing, the person shall have a deoxyribonucleic acid (
DNA) sample drawn immediately after the sentencing.

(2) A person who is adjudicated guilty or adjudicated delinquent for a sex offense, a violent offense, [A> RESIDENTIAL OR COMMERCIAL BURGLARY, <A] or a repeat offense shall have a deoxyribonucleic acid (
DNA) sample drawn as a condition of any sentence in which disposition will not involve an intake into a prison, jail, juvenile detention facility, or any other detention facility or institution;

(3) A person who is acquitted on the grounds of mental disease or defect of the commission of a sex offense, a violent offense, [A> RESIDENTIAL OR COMMERCIAL BURGLARY, <A] or a repeat offense and committed to an institution or other facility shall have a deoxyribonucleic acid (
DNA) sample drawn upon intake to that institution or other facility; and

(4) Under no circumstance shall a person who is adjudicated guilty or adjudicated delinquent for a sex offense, a violent offense, [A> RESIDENTIAL OR COMMERCIAL BURGLARY, <A] or a repeat offense be released in any manner after such disposition unless and until a deoxyribonucleic acid (
DNA) sample has been drawn.

(b) Adjudication of guilt before August 1, 1997. A person who has been adjudicated guilty or adjudicated delinquent for a sex offense, a violent offense, [A> RESIDENTIAL OR COMMERCIAL BURGLARY, <A] or a repeat offense before August 1, 1997, and who is still serving a term of confinement in connection therewith on August 1, 1997, shall not be released in any manner prior to the expiration of his maximum term of confinement unless and until a deoxyribonucleic acid (
DNA) sample has been drawn.

(c) Supervision of deoxyribonucleic acid (
DNA) samples. All deoxyribonucleic acid (DNA) samples taken pursuant to this section shall be taken in accordance with regulations promulgated by the State Crime Laboratory in consultation with the Department of Correction, the Department of Community Punishment, the Department of Human Services, and the Administrative Office of the Courts.


HISTORY:

Approved by the Governor February 12, 2001

SPONSOR: Representative Hunt



ARKANSAS ADVANCE LEGISLATIVE SERVICE
STATENET
Copyright © 2001 by Information for Public Affairs, Inc.

ARKANSAS 83RD REGULAR SESSION

ACT 920

HOUSE BILL 1423

2001 Ark. ALS 920; 2001 Ark. Acts 920; 2001 Ark. HB 1423
SYNOPSIS: A BILL -- For An Act To Be Entitled AN ACT TO AMEND ARKANSAS CODE 5-1-109 TO EXTEND THE PERIOD OF LIMITATION FOR RAPE; AND FOR OTHER PURPOSES. Subtitle AN ACT TO AMEND ARKANSAS CODE 5-1-109 TO EXTEND THE PERIOD OF LIMITATION FOR RAPE.

NOTICE:
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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:

[*1] SECTION 1. Arkansas Code 5-1-109(b), concerning periods of limitation on criminal offenses, is amended to read as follows:

(b) Except as otherwise provided in this section, prosecutions for other offenses must be commenced within the following periods of limitation after their commission:

(1) Class Y and Class A felonies, six (6) years [A> , EXCEPT RAPE FOR WHICH THE PERIOD OF LIMITATION MAY BE EXTENDED TO FIFTEEN (15) YEARS DURING WHICH EXTENDED TIME A PROSECUTION FOR RAPE MAY BE COMMENCED IF BASED UPON FORENSIC
DNA TESTING OR OTHER TESTS WHICH MAY BECOME AVAILABLE THROUGH ADVANCES IN TECHNOLOGY; <A]

(2) Class B, C, or D, or unclassified felonies, three (3) years;

(3) Misdemeanors or violations, one (1) year.


HISTORY:

Approved by the Governor March 19, 2001

SPONSOR: Representative Hutchinson



CALIFORNIA

DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2001 by Matthew Bender & Company, one of the LEXIS Publishing companies.
All rights reserved.

*** THIS SECTION IS CURRENT THROUGH THE 2001 SUPPLEMENT (2000 SESSION) ***
INCLUDING URGENCY LEGISLATION THROUGH 2001 REG. SESS. CH.2, 3/1/01 AND 2001 1ST EX. SESS. CH. 4X, 2/1/01

GOVERNMENT CODE
TITLE 3. Government of Counties
DIVISION 2. Officers
PART 3. Other Officers
CHAPTER 10. Coroner
ARTICLE 2.5. Autopsy

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Cal Gov Code § 27521 (2001)
§ 27521. Procedures for postmortem examination or autopsy

(a) Any postmortem examination or autopsy conducted at the discretion of a coroner upon an unidentified body or human remains shall be subject to this section.

(b) A postmortem examination or autopsy shall include, but shall not be limited to, the following procedures:

(1) Taking of all available fingerprints and palms prints.

(2) A dental examination consisting of dental charts and dental X-rays of the deceased person's teeth, which may be conducted on the body or human remains by a qualified dentist as determined by the coroner.

(3) The collection of tissue, including a hair sample, or body fluid samples for future
DNA testing, if necessary.

(4) Frontal and lateral facial photographs with the scale indicated.

(5) Notation and photographs, with a scale, of significant scars, marks, tattoos, clothing items, or other personal effects found with or near the body.

(6) Notations of observations pertinent to the estimation of the time of death.

(7) Precise documentation of the location of the remains.

(c) The postmortem examination or autopsy of the unidentified body or remains may include full body X-rays.

(d) The coroner shall prepare a final report of investigation in a format established by the Department of Justice. The final report shall list or describe the information collected pursuant to the postmortem examination or autopsy conducted under subdivision (b).

(e) The body of an unidentified deceased person may not be cremated or buried until the jaws (maxilla and mandible with teeth) and other tissue samples are retained for future possible use. Unless the coroner has determined that the body of the unidentified deceased person has suffered significant deterioration or decomposition, the jaws shall not be removed until immediately before the body is cremated or buried. The coroner shall retain the jaws and other tissue samples for one year after a positive identification is made, and no civil or criminal challenges are pending, or indefinitely.

(f) If the coroner with the aid of the dental examination and any other identifying findings is unable to establish the identity of the body or human remains, the coroner shall submit dental charts and dental X-rays of the unidentified deceased person to the Department of Justice on forms supplied by the Department of Justice within 45 days of the date the body or human remains were discovered.

(g) If the coroner with the aid of the dental examination and other identifying findings is unable to establish the identity of the body or human remains, the coroner shall submit the final report of investigation to the Department of Justice within 180 days of the date the body or human remains were discovered.

HISTORY:
Added Stats 2000 ch 284 § 1 (SB 1736).

*** THIS SECTION IS CURRENT THROUGH THE 2001 SUPPLEMENT (2000 SESSION) ***
INCLUDING URGENCY LEGISLATION THROUGH 2001 REG. SESS. CH.2, 3/1/01 AND 2001 1ST EX. SESS. CH. 4X, 2/1/01

GOVERNMENT CODE
TITLE 8. The Organization and Government of Courts
CHAPTER 12. County Penalties
ARTICLE 2. Allocation of Penalties

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Cal Gov Code § 76104.5 (2001)
§ 76104.5.
DNA Identification Fund

(a) For the purpose of assisting any county in the establishment of automated photographic or
DNA (genetic fingerprint) identification systems, or any new technology in the county, the board of supervisors may establish in the county treasury a DNA Identification Fund into which shall be deposited the amounts specified in the resolutions adopted by the board of supervisors as authorized in accordance with this title, up to fifty cents ($ 0.50) for every seven dollars ($ 7) collected pursuant to Section 76000. The moneys of the fund shall be payable only for the purchase, lease, operation, including personnel and related costs, and maintenance of automated photographic or DNA (genetic fingerprint) identification systems, or any new technology.

(b) The fund moneys described in subdivision (a), together with any interest earned thereon, shall be held by the county treasurer separate from any funds subject to transfer or division pursuant to Section 1463 of the Penal Code. Deposits to the fund may continue through and including the 20th year after the initial calendar year in which the surcharge is collected, or longer if and as necessary to make payments upon any lease or leaseback arrangement utilized to finance any of the projects specified herein.

(c) For purposes of this section, "
DNA (genetic fingerprint) identification system" means equipment, procedures, and methodologies compatible with and meeting the standards set for DNA testing by the Department of Justice pursuant to the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (Chapter 6 (commencing with Section 295) of Title 9 of Part 1 of the Penal Code).

HISTORY:
Added Stats 1992 ch 174 § 1 (AB 3658).
Amended Stats 1999 ch 475 § 1 (SB 654).


DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2001 by Matthew Bender & Company, one of the LEXIS Publishing companies.
All rights reserved.

*** THIS SECTION IS CURRENT THROUGH THE 2001 SUPPLEMENT (2000 SESSION) ***
INCLUDING URGENCY LEGISLATION THROUGH 2001 REG. SESS. CH.2, 3/1/01 AND 2001 1ST EX. SESS. CH. 4X, 2/1/01

PENAL CODE
PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 5. Bigamy, Incest, and the Crime Against Nature

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Cal Pen Code § 290.3 (2001)
§ 290.3. Fines on first and subsequent convictions of sex offenses; Use of funds for Department of Justice Sexual Habitual Offender Program

(a) Every person who is convicted of any offense specified in subdivision (a) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for violation of the underlying offense, be punished by a fine of two hundred dollars ($ 200) upon the first conviction or a fine of three hundred dollars ($ 300) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.

An amount equal to all fines collected pursuant to this subdivision during the preceding month upon conviction of, or upon the forfeiture of bail by, any person arrested for, or convicted of, committing an offense specified in subdivision (a) of Section 290, shall be transferred once a month by the county treasurer to the Controller for deposit in the General Fund. Moneys deposited in the General Fund pursuant to this subdivision shall be transferred by the Controller as provided in subdivision (b).

(b) Out of the moneys deposited pursuant to subdivision (a) as a result of second and subsequent convictions of Section 290, one-third shall first be transferred to the Department of Justice Sexual Habitual Offender Fund, as provided in paragraph (1) of this subdivision. Out of the remainder of all moneys deposited pursuant to subdivision (a), 50 percent shall be transferred to the Department of Justice Sexual Habitual Offender Fund, as provided in paragraph (1), 25 percent shall be transferred to the Department of Justice
DNA Testing Fund, as provided in paragraph (2), and 25 percent shall be allocated equally to counties that maintain a local DNA testing laboratory, as provided in paragraph (3).

(1) Those moneys so designated shall be transferred to the Department of Justice Sexual Habitual Offender Fund created pursuant to paragraph (5) of subdivision (b) of Section 11170 and, when appropriated by the Legislature, shall be used for the purposes of Chapter 9.5 (commencing with Section 13885) and Chapter 10 (commencing with Section 13890) of Title 6 of Part 4 for the purpose of monitoring, apprehending, and prosecuting sexual habitual offenders.

(2) Those moneys so designated shall be directed to the Department of Justice and transferred to the Department of Justice
DNA Testing Fund, which is hereby created, for the exclusive purpose of testing deoxyribonucleic acid (DNA) samples for law enforcement purposes. The moneys in that fund shall be available for expenditure upon appropriation by the Legislature.

(3) Those moneys so designated shall be allocated equally and distributed quarterly to counties that maintain a local
DNA testing laboratory. Before making any allocations under this paragraph, the Controller shall deduct the estimated costs that will be incurred to set up and administer the payment of these funds to the counties. Any funds allocated to a county pursuant to this paragraph shall be used by that county for the exclusive purpose of testing DNA samples for law enforcement purposes.

(c) Notwithstanding any other provision of this section, the Department of Corrections or the Department of the Youth Authority may collect a fine imposed pursuant to this section from a person convicted of a violation of any offense listed in subdivision (a) of Section 290, that results in incarceration in a facility under the jurisdiction of the Department of Corrections or the Department of the Youth Authority. All moneys collected by the Department of Corrections or the Department of the Youth Authority under this subdivision shall be transferred, once a month, to the Controller for deposit in the General Fund, as provided in subdivision (a), for transfer by the Controller, as provided in subdivision (b).

HISTORY:
Added Stats 1988 ch 1134 § 1. Amended Stats 1992 ch 1338 § 1 (SB 1184); Stats 1993 ch 589 § 110 (AB 2211); Stats 1994 ch 866 § 1 (AB 304), ch 867 § 3.5 (AB 2500); Stats 1995 ch 91 § 121 (SB 975).

NOTES:
AMENDMENTS:
1992 Amendment:
In addition to making additional changes, amended the second paragraph by (1) adding "committing" after "or convicted of,"; (2) adding "be deposited in the Department of Justice Sexual Habitual Offender Fund created pursuant to paragraph (5) of subdivision (b) of Section 11170 and" after "this section shall"; (3) substituting ", shall" for "and until July 1, 1994," after "by the Legislature"; (4) adding "Chapter 9.5 (commencing with Section 13885) and" after "the purpose of"; and (5) adding "for the purpose of monitoring, apprehending, and prosecuting sexual habitual offenders" after "of Part 4".
1993 Amendment:
Routine code maintenance.
1994 Amendment:
Substituted the section for the former section which read: "Every person convicted of a violation of any offense listed in subdivision (a) of Section 290, in addition to any imprisonment or fine, or both, imposed for violation of the underlying offense, shall be punished by a fine of one hundred dollars ($ 100) upon the first conviction or a fine of two hundred dollars ($ 200) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.
"Out of the moneys deposited with the county treasurer pursuant to this section, there shall be transferred, once a month, to the Controller for deposit in the General Fund an amount equal to all fines collected during the preceding month upon conviction of, or upon the forfeiture of bail by, any person arrested for, or convicted of, committing an offense listed in Section 290. Moneys deposited in the General Fund pursuant to this section shall be deposited in the Department of Justice Sexual Habitual Offender Fund created pursuant to paragraph (5) of subdivision (b) of Section 11170 and, when appropriated by the Legislature, shall be used for the purposes of Chapter 9.5 (commencing with Section 13885) and Chapter 10 (commencing with Section 13890) of Title 6 of Part 4 for the purpose of monitoring, apprehending, and prosecuting sexual habitual offenders." (As amended Stats 1994 ch 867, compared to the section as it read prior to 1994. This section was also amended by an earlier chapter, ch 866. See Gov C § 9605.)
1995 Amendment:
Routine code maintenance.

EDITOR'S NOTES:
For citation of act, see the 1994 Note following § 290.

NOTES OF DECISIONS

Upon convicting defendant for having violated Pen. Code, $ 220 (assault with intent to commit rape), the trial court properly imposed a $ 100 fine under Pen. Code, $ 290.3 (fines for convictions of sex offenders), despite the court's failure to determine whether defendant had the ability to pay the fine, since, under Pen. Code, $ 290.3, the burden is on the defendant to timely raise the issue of inability to pay, and defendant had failed to do so. Although defendant had been informed through his probation report that the probation officer was recommending the imposition of the fine, defendant raised no objection, nor did he make any attempt to show he did not have the ability to pay the fine. Defendant's failure to object or present contrary evidence waived the right to complain on appeal. People v McMahan (1992, Cal App 5th Dist) 3 Cal App 4th 740.



PENAL CODE
PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 5. Bigamy, Incest, and the Crime Against Nature

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Cal Pen Code § 290.7 (2001)
§ 290.7. Provision of blood and saliva samples to county in which inmate is to be released

The Department of Corrections shall provide samples of blood and saliva taken from a prison inmate pursuant to the
DNA and Forensic Identification Data Base and Data Bank Act of 1998 (Chapter 6 (commencing with Section 295) of Title 9 of Part 1 of the Penal Code) to the county in which the inmate is to be released if the county maintains a local DNA testing laboratory.

HISTORY:
Added Stats 1994 ch 866 § 3 (AB 304).
Amended Stats 1999 ch 475 § 2 (SB 654).



PENAL CODE
PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 6.
DNA and Forensic Identification Data Base and Data Bank Act of 1998

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Cal Pen Code, prec § 295 (2001)
Preceding § 295

HISTORY:
[Added Stats 1998 ch 696 § 2.]



PENAL CODE
PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 6.
DNA and Forensic Identification Data Base and Data Bank Act of 1998
ARTICLE 1. Purpose and Administration

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Cal Pen Code § 295.1 (2001)
§ 295.1. Responsibilities

(a) The Department of Justice shall perform
DNA analysis and other forensic identification analysis pursuant to this chapter only for identification purposes.

(b) The Department of Justice Bureau of Criminal Identification and Information shall perform examinations of palm prints pursuant to this chapter only for identification purposes.

(c) The
DNA Laboratory of the Department of Justice shall serve as a repository for blood specimens and saliva and other biological samples collected, and shall analyze specimens and samples, and store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records related to the following:

(1) Forensic casework.

(2) Known and evidentiary specimens and samples from crime scenes or criminal investigations.

(3) Missing or unidentified persons.

(4) Offenders required to provide specimens, samples, and print impressions under this chapter.

(5) Anonymous
DNA records used for training, research, statistical analysis of populations, or quality control.

(d) The computerized data bank of the
DNA Laboratory of the Department of Justice shall include files as necessary to implement this chapter.

(e) Nothing in this section shall be construed as requiring the Department of Justice to provide samples for quality control or other purposes to those who request samples.

HISTORY:
Added Stats 1998 ch 696 § 2 (AB 1332).



PENAL CODE
PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 6.
DNA and Forensic Identification Data Base and Data Bank Act of 1998
ARTICLE 2. Offenders Subject to Sample Collection

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Cal Pen Code § 296 (2001)
§ 296. Submission to testing

(a)(1) Any person who is convicted of any of the following crimes, or is found not guilty by reason of insanity of any of the following crimes, shall, regardless of sentence imposed or disposition rendered, be required to provide two specimens of blood, a saliva sample, right thumbprints, and a full palm print impression of each hand for law enforcement identification analysis:

(A) Any offense or attempt to commit any felony offense described in Section 290, or any felony offense that imposes upon a person the duty to register in California as a sex offender under Section 290.

(B) Murder in violation of Section 187, 190, 190.05, or any degree of murder as set forth in Chapter 1 (commencing with Section 187) of Title 8 of Part 1 of the Penal Code, or any attempt to commit murder.

(C) Voluntary manslaughter in violation of Section 192 or an attempt to commit voluntary manslaughter.

(D) Felony spousal abuse in violation of Section 273.5.

(E) Aggravated sexual assault of a child in violation of Section 269.

(F) A felony offense of assault or battery in violation of Section 217.1, 220, 241.1, 243, 243.1, 243.3, 243.4, 243.7, 244, 245, 245.2, 245.3, or 245.5.

(G) Kidnapping in violation of subdivisions (a) to (e), inclusive, of Section 207, or Section 208, 209, 209.5, or 210, or an attempt to commit any of these offenses.

(H) Mayhem in violation of Section 203 or aggravated mayhem in violation of Section 205, or an attempt to commit either of these offenses.

(I) Torture in violation of Section 206 or an attempt to commit torture.

(2) Any person who is required to register under Section 290 because of the commission of, or the attempt to commit, a felony offense specified in Section 290, and who is committed to any institution under the jurisdiction of the Department of the Youth Authority where he or she was confined, or is granted probation, or is or was committed to a state hospital as a mentally disordered sex offender under Article 1 (commencing with Section 6300) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code, shall be required to provide two specimens of blood, a saliva sample, right thumbprints, and a full palm print impression of each hand to that institution or, in the case of a person granted probation, to a person and at a location within the county designated for testing.

(b) The provisions of this chapter and its requirements for submission to testing as soon as administratively practicable to provide specimens, samples, and print impressions as described in subdivision (a) shall apply regardless of placement or confinement in any mental hospital or other public or private treatment facility, and shall include, but not be limited to, the following persons, including juveniles:

(1) Any person committed to a state hospital or other treatment facility as a mentally disordered sex offender under Article 1 (commencing with Section 6300) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.

(2) Any person who has a severe mental disorder as set forth within the provisions of Article 4 (commencing with Section 2960) of Chapter 7 of Title 1 of Part 3 of the Penal Code.

(3) Any person found to be a sexually violent predator pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.

(c) The provisions of this chapter are mandatory and apply whether or not the court advises a person, including any juvenile, that he or she must provide the data bank and data base specimens, samples, and print impressions as a condition of probation, parole, or any plea of guilty, no contest, or not guilty by reason of insanity, to any of the offenses described in subdivision (a).

(d) At sentencing or disposition, the prosecuting attorney shall verify in writing that the requisite samples are required by law, and that they have been taken, or are scheduled to be taken before the offender is released on probation, or other scheduled release. However, a failure by the prosecuting attorney or any other law enforcement agency to verify sample requirement or collection shall not relieve a person of the requirement to provide samples.

(e) The abstract of judgment issued by the court shall indicate that the court has ordered the person to comply with the requirements of this chapter and that the person shall be included in the state's
DNA and Forensic Identification Data Base and Data Bank program and be subject to this chapter. However, failure by the court to enter these facts in the abstract of judgment shall not invalidate a plea, conviction, or disposition, or otherwise relieve a person from the requirements of this chapter.

HISTORY:
Added Stats 1998 ch 696 § 2 (AB 1332). Amended Stats 1999 ch 475 § 3 (SB 654).
Amended Stats 2000 ch 823 § 1 (AB 2814).


PENAL CODE
PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 6.
DNA and Forensic Identification Data Base and Data Bank Act of 1998
ARTICLE 2. Offenders Subject to Sample Collection

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Cal Pen Code § 296.1 (2001)
§ 296.1. Persons in specified situations required to give specimens

(a) Any person, including any juvenile, who comes within the provisions of this chapter for an offense set forth in subdivision (a) of Section 296, and who is granted probation, or serves his or her entire term of confinement in a county jail, or is not sentenced to a term of confinement in a state prison facility, or otherwise bypasses a prison inmate reception center maintained by the Department of Corrections, shall, as soon as administratively practicable, but in any case, prior to physical release from custody, be required to provide two specimens of blood, a saliva sample, and thumb and palm print impressions as set forth in subdivision (a) of Section 296, at a county jail facility or other state, local, or private facility designated for the collection of these specimens, samples, and print impressions, in accordance with subdivision (f) of Section 295.

If the person subject to this chapter is not incarcerated at the time of sentencing, the court shall order the person to report within five calendar days to a county jail facility or other state, local, or private facility designated for the collection of specimens, samples, and print impressions to provide these specimens, samples, and print impressions in accordance with subdivision (f) of Section 295.

(b) If a person who comes within the provisions of this chapter for an offense set forth in subdivision (a) of Section 296 is sentenced to serve a term of imprisonment in a state correctional institution, the Director of Corrections shall collect the blood specimens, saliva samples, and thumb and palm print impressions required by this chapter from the person during the intake process at the reception center designated by the director, or as soon as administratively practicable thereafter at a receiving penal institution.

(c) Any person, including, but not limited to, any juvenile and any person convicted and sentenced to death, life without the possibility of parole, or any life or indeterminate term, who is imprisoned or confined in a state correctional institution, a county jail, a facility within the jurisdiction of the Department of the Youth Authority, or any other state, local, or private facility after a conviction of any crime, or disposition rendered in the case of a juvenile, whether or not that crime or offense is one set forth in subdivision (a) of Section 296, shall provide two specimens of blood, a saliva sample, and thumb and palm print impressions pursuant to this chapter, as soon as administratively practicable once it has been determined that both of the following apply:

(1) The person has been convicted or adjudicated a ward of the court in California of a qualifying offense described in subdivision (a) of Section 296 or has been convicted or had a disposition rendered in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as an offense described in subdivision (a) of Section 296.

(2) The person's blood specimens, saliva samples, and thumb and palm print impressions authorized by this chapter are not in the possession of the Department of Justice
DNA Laboratory as part of the DNA data bank program.

This subdivision applies regardless of when the person was convicted of the qualifying offense described in subdivision (a) of Section 296 or a similar crime under the laws of the United States or any other state, or when disposition was rendered in the case of a juvenile who is adjudged a ward of the court for commission of a qualifying offense described in subdivision (a) of Section 296 or a similar crime under the laws of the United States or any other state.

(d) Any person, including any juvenile, who comes within the provisions of this chapter for an offense set forth in subdivision (a) of Section 296, and who is on probation or parole, shall be required to provide two specimens of blood, a saliva sample, and thumb and palm print impressions as required pursuant to this chapter, if it is determined that the person has not previously provided these specimens, samples, and print impressions to law enforcement, or if it is determined that these specimens, samples, and print impressions are not in the possession of the Department of Justice. The person shall have the specimens, samples, and print impressions collected within five calendar days of being notified by a law enforcement agency or other agency authorized by the Department of Justice. The specimens, samples, and print impressions shall be collected in accordance with subdivision (f) of Section 295 at a county jail facility or other state, local, or private facility designated for this collection.

This subdivision shall apply regardless of when the crime committed became a qualifying offense pursuant to this chapter.

(e) When an offender from another state is accepted into this state under any of the interstate compacts described in Article 3 (commencing with Section 11175) or Article 4 (commencing with Section 1189) of Chapter 2 of Title 1 of Part 4 of this code, or Chapter 4 (commencing with Section 1300) of Part 1 of Division 2 of the Welfare and Institutions Code, or under any other reciprocal agreement with any county, state, or federal agency, or any other provision of law, whether or not the offender is confined or released, the acceptance is conditional on the offender providing blood specimens, saliva samples, and palm and thumb print impressions pursuant to this chapter, if the offender was convicted of an offense which would qualify as a crime described in subdivision (a) of Section 296, or if the person was convicted of a similar crime under the laws of the United States or any other state.

If the person is not confined, the specimens, samples, and print impressions required by this chapter must be provided within five calendar days after the offender reports to the supervising agent or within five calendar days of notice to the offender, whichever occurs first. The person shall report to a county jail facility in the county where he or she resides or temporarily is located to have the specimens, samples, and print impressions collected pursuant to this chapter. The specimens, samples, and print impressions shall be collected in accordance with subdivision (f) of Section 295.

If the person is confined, he or she shall provide the blood specimens, saliva samples, and thumb and palm print impressions required by this chapter as soon as practicable after his or her receipt in a state, county, local, private, or other facility.

(f) Subject to the approval of the Director of the Federal Bureau of Investigation, persons confined or incarcerated in a federal prison or federal institution located in California who are convicted of a qualifying offense described in subdivision (a) of Section 296 or of a similar crime under the laws of the United States or any other state that would constitute an offense described in subdivision (a) of Section 296, are subject to this chapter and shall provide blood specimens, saliva samples, and thumb and palm print impressions pursuant to this chapter if any of the following apply:

(1) The person committed a qualifying offense in California.

(2) The person was a resident of California at the time of the qualifying offense.

(3) The person has any record of a California conviction for a sex or violent offense described in subdivision (a) of Section 296, regardless of when the crime was committed.

(4) The person will be released in California.

Once a federal data bank is established and accessible to the Department of Justice, the Department of Justice
DNA Laboratory shall, upon the request of the United States Department of Justice, forward the samples taken pursuant to this chapter, with the exception of those taken from suspects pursuant to subdivision (b) of Section 297, to the United States Department of Justice DNA data bank laboratory. The samples and impressions required by this chapter shall be taken in accordance with the procedures set forth in subdivision (f) of Section 295.

(g) If a person who is released on parole, furlough, or other release, is returned to a state correctional institution for a violation of a condition of his or her parole, furlough, or other release, and is serving or at any time has served a term of imprisonment for committing an offense described in subdivision (a) of Section 296, and he or she did not provide specimens, samples, and print impressions pursuant to the state's
DNA data bank program, the person shall submit to collection of blood specimens, saliva samples, and thumb and palm print impressions at a state correctional institution.

This subdivision applies regardless of the crime or Penal Code violation for which a person is returned to a state correctional institution and regardless of the date the qualifying offense was committed.

HISTORY:
Added Stats 1998 ch 696 § 2 (AB 1332).
Amended Stats 2000 ch 135 § 132 (AB 2539).
Amended Stats 2000 ch 823 § 2 (AB 2814).



PENAL CODE
PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 6.
DNA and Forensic Identification Data Base and Data Bank Act of 1998
ARTICLE 2. Offenders Subject to Sample Collection

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Cal Pen Code § 296.2 (2001)
§ 296.2. Unusable specimens; Oversights and errors

(a) Whenever the
DNA Laboratory of the Department of Justice notifies the Department of Corrections or any law enforcement agency that a biological specimen or sample, or print impression is not usable for any reason, the person who provided the original specimen, sample, or print impression shall submit to collection of additional specimens, samples, or print impressions. The Department of Corrections or other responsible law enforcement agency shall collect additional specimens, samples, and print impressions from these persons as necessary to fulfill the requirements of this chapter, and transmit these specimens, samples, and print impressions to the appropriate agencies of the Department of Justice.

(b) If a person, including any juvenile, is convicted of, pleads guilty or no contest to, is found not guilty by reason of insanity of, or is adjudged a ward of the court under Section 602 of the Welfare and Institutions Code for committing, any of the offenses described in subdivision (a) of Section 296, and has given a blood specimen or other biological sample or samples to law enforcement for any purpose, the
DNA Laboratory of the Department of Justice is authorized to analyze the blood specimen and other biological sample or samples for forensic identification markers, including DNA markers, and to include the DNA and forensic identification profiles from these specimens and samples in the state's DNA and forensic identification data bank and data bases.

This subdivision applies whether or not the blood specimen or other biological sample originally was collected from the sexual or violent offender pursuant to the data bank and data base program, and whether or not the crime committed predated the enactment of the state's
DNA and forensic identification data bank program, or any amendments thereto. This subdivision does not relieve a person convicted of a crime described in subdivision (a) of Section 296, or otherwise subject to this chapter, from the requirement to give blood specimens, saliva samples, and thumb and palm print impressions for the DNA and forensic identification data bank and data base program as described in this chapter.

(c) Any person who is required to register under Section 290 for the commission of any felony offense specified in Section 290 who has not provided the specimens, samples, and print impressions described in this chapter for any reason including the release of the person prior to the enactment of the state's
DNA and forensic identification data base and data bank program, an oversight or error, or because of the transfer of the person from another state, the person, as an additional requirement of registration or of updating his or her annual registration under paragraph (1) of subdivision (a) of Section 290 and subdivisions (e) and (f) of Section 290 shall give specimens, samples, and print impressions as described in this chapter for inclusion in the state's DNA and forensic identification data base and data bank.

At the time the person registers or updates his or her registration, he or she shall receive an appointment designating a time and place for the collection of the specimens, samples, and print impressions described in this chapter, if he or she has not already complied with the provisions of this chapter.

As specified in the appointment, the person shall report to a county jail facility in the county where he or she resides or is temporarily located to have specimens, samples, and print impressions collected pursuant to this chapter or other facility approved by the Department of Justice for this collection. The specimens, samples, and print impressions shall be collected in accordance with subdivision (f) of Section 295.

If, prior to the time of the annual registration update, a person is notified by the Department of Justice, a probation or parole officer, other law enforcement officer, or officer of the court, that he or she is subject to this chapter, then the person shall provide the specimens, samples, and print impressions required by this chapter within 10 calendar days of the notification at a county jail facility or other facility approved by the department for this collection.

HISTORY:
Added Stats 1998 ch 696 § 2 (AB 1332).



PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 6.
DNA and Forensic Identification Data Base and Data Bank Act of 1998
ARTICLE 3. Data Base Applications

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Cal Pen Code § 297 (2001)
§ 297. Laboratory analysis

(a) The laboratories of the Department of Justice that are accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board (ASCLD/LAB) or any certifying body approved by the ASCLD/LAB, and any crime laboratory designated by the Department of Justice that is accredited by the ASCLD/LAB or any certifying body approved by the ASCLD/LAB, are authorized to analyze crime scene samples and other samples of known and unknown origin and to compare and check the forensic identification profiles, including
DNA profiles, of these samples against available DNA and forensic identification data banks and data bases in order to establish identity and origin of samples for identification purposes.

(b)(1) Except as provided in paragraph (2), a biological sample taken in the course of a criminal investigation, either voluntarily or by court order, from a person who has not been convicted, may only be compared to samples taken from that specific criminal investigation and may not be compared to any other samples from any other criminal investigation without a court order.

(2) A biological sample obtained from a suspect, as defined in paragraph (3), in a criminal investigation may be analyzed for forensic identification profiles, including
DNA profiles so that the profile can be placed in a suspect data base file and searched against the DNA data bank profiles of case evidence. For the purposes of this subdivision, the DNA data bank comparison of suspect and evidence profiles may be made, by the DNA Laboratory of the Department of Justice, or any crime laboratory designated by the Department of Justice that is accredited by the ASCLD/LAB or any certifying body approved by the ASCLD/LAB.

(3) For the purposes of this subdivision, "a suspect" means a person against whom an information or indictment has been filed for one of the crimes listed in subdivision (a) of Section 296. For the purposes of this subdivision, a person shall remain a suspect for two years from the date of the filing of the information or indictment or until the
DNA laboratory receives notification that the person has been acquitted of the charges or the charges were dismissed.

(c) All laboratories, including the Department of Justice
DNA laboratories, contributing DNA profiles for inclusion in California's DNA Data Bank shall be accredited by the ASCLD/LAB or any certifying body approved by the ASCLD/LAB. Additionally, each laboratory shall submit to the Department of Justice for review the annual report required by the ASCLD/LAB or any certifying body approved by the ASCLD/LAB which documents the laboratory's adherence to ASCLD/LAB standards or the standards of any certifying body approved by the ASCLD/LAB. The requirements of this subdivision apply to California laboratories only and do not preclude DNA profiles developed in California from being searched in the National DNA Data Base (CODIS).

(d) Nothing in this section precludes laboratories meeting Technical Working Group on
DNA Analysis Methods (TWGDAM) or Scientific Working Group on DNA Analysis Methods (SWGDAM) guidelines or standards promulgated by the DNA Advisory Board as established pursuant to Section 14131 of Title 42 of the United States Code, from performing forensic identification analyses, including DNA profiling, independent of the Department of Justice DNA and Forensic Identification Data Base and Data Bank program.

(e) The limitation on the types of offenses set forth in subdivision (a) of Section 296 as subject to the collection and testing procedures of this chapter is for the purpose of facilitating the administration of this chapter.

(f) The detention, arrest, wardship, or conviction of a person based upon a data bank match or data base information is not invalidated if it is later determined that the specimens, samples, or print impressions were obtained or placed in a data bank or data base by mistake.

HISTORY:
Added Stats 1998 ch 696 § 2 (AB 1332).
Amended Stats 1999 ch 475 § 4 (SB 654).
Amended Stats 2000 ch 823 § 3 (AB 2814).

PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 6.
DNA and Forensic Identification Data Base and Data Bank Act of 1998
ARTICLE 3. Data Base Applications

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Cal Pen Code § 297 (2001)
§ 297. Laboratory analysis

(a) The laboratories of the Department of Justice that are accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board (ASCLD/LAB) or any certifying body approved by the ASCLD/LAB, and any crime laboratory designated by the Department of Justice that is accredited by the ASCLD/LAB or any certifying body approved by the ASCLD/LAB, are authorized to analyze crime scene samples and other samples of known and unknown origin and to compare and check the forensic identification profiles, including
DNA profiles, of these samples against available DNA and forensic identification data banks and data bases in order to establish identity and origin of samples for identification purposes.

(b)(1) Except as provided in paragraph (2), a biological sample taken in the course of a criminal investigation, either voluntarily or by court order, from a person who has not been convicted, may only be compared to samples taken from that specific criminal investigation and may not be compared to any other samples from any other criminal investigation without a court order.

(2) A biological sample obtained from a suspect, as defined in paragraph (3), in a criminal investigation may be analyzed for forensic identification profiles, including
DNA profiles so that the profile can be placed in a suspect data base file and searched against the DNA data bank profiles of case evidence. For the purposes of this subdivision, the DNA data bank comparison of suspect and evidence profiles may be made, by the DNA Laboratory of the Department of Justice, or any crime laboratory designated by the Department of Justice that is accredited by the ASCLD/LAB or any certifying body approved by the ASCLD/LAB.

(3) For the purposes of this subdivision, "a suspect" means a person against whom an information or indictment has been filed for one of the crimes listed in subdivision (a) of Section 296. For the purposes of this subdivision, a person shall remain a suspect for two years from the date of the filing of the information or indictment or until the
DNA laboratory receives notification that the person has been acquitted of the charges or the charges were dismissed.

(c) All laboratories, including the Department of Justice
DNA laboratories, contributing DNA profiles for inclusion in California's DNA Data Bank shall be accredited by the ASCLD/LAB or any certifying body approved by the ASCLD/LAB. Additionally, each laboratory shall submit to the Department of Justice for review the annual report required by the ASCLD/LAB or any certifying body approved by the ASCLD/LAB which documents the laboratory's adherence to ASCLD/LAB standards or the standards of any certifying body approved by the ASCLD/LAB. The requirements of this subdivision apply to California laboratories only and do not preclude DNA profiles developed in California from being searched in the National DNA Data Base (CODIS).

(d) Nothing in this section precludes laboratories meeting Technical Working Group on
DNA Analysis Methods (TWGDAM) or Scientific Working Group on DNA Analysis Methods (SWGDAM) guidelines or standards promulgated by the DNA Advisory Board as established pursuant to Section 14131 of Title 42 of the United States Code, from performing forensic identification analyses, including DNA profiling, independent of the Department of Justice DNA and Forensic Identification Data Base and Data Bank program.

(e) The limitation on the types of offenses set forth in subdivision (a) of Section 296 as subject to the collection and testing procedures of this chapter is for the purpose of facilitating the administration of this chapter.

(f) The detention, arrest, wardship, or conviction of a person based upon a data bank match or data base information is not invalidated if it is later determined that the specimens, samples, or print impressions were obtained or placed in a data bank or data base by mistake.

HISTORY:
Added Stats 1998 ch 696 § 2 (AB 1332).
Amended Stats 1999 ch 475 § 4 (SB 654).
Amended Stats 2000 ch 823 § 3 (AB 2814).

PENAL CODE
PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 6.
DNA and Forensic Identification Data Base and Data Bank Act of 1998
ARTICLE 6. Limitations on Disclosure

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Cal Pen Code § 299.5 (2001)
§ 299.5. Authorized use of information

(a) All
DNA and forensic identification profiles and other identification information retained by the Department of Justice pursuant to this chapter are exempt from any law requiring disclosure of information to the public and shall be confidential except as otherwise provided in this chapter.

(b) All evidence and forensic samples containing biological material retained by the Department of Justice
DNA Laboratory or other state law enforcement agency are exempt from any law requiring disclosure of information to the public or the return of biological specimens.

(c) Non-
DNA forensic identification information may be filed with the offender's file maintained by the Sex Registration Unit of the Department of Justice or in other computerized data bank systems maintained by the Department of Justice.

(d) The
DNA and other forensic identification information retained by the Department of Justice pursuant to this chapter shall not be included in the state summary criminal history information. However, nothing in this chapter precludes law enforcement personnel from entering into a person's criminal history information or offender file maintained by the Department of Justice, the fact that the specimens, samples, and print impressions required by this chapter have or have not been collected from that person.

(e) The fact that the blood specimens, saliva samples, and print impressions required by this chapter have been received by the
DNA Laboratory of the Department of Justice shall be included in the state summary criminal history information.

The full palm prints of each hand shall be filed and maintained by the Automated Latent Print Section of the Bureau of Criminal Identification and Information of the Department of Justice, and may be included in the state summary criminal history information.

(f)
DNA and other forensic identification information shall be released only to law enforcement agencies, including, but not limited to, parole officers of the Department of Corrections, hearing officers of the parole authority, and district attorneys' offices, at the request of the agency, except as specified in this section. Dissemination of this information to law enforcement agencies and district attorneys' offices outside this state shall be performed in conformity with the provisions of this section. This information shall be available to defense counsel upon court order made pursuant to Chapter 10 (commencing with Section 1054) of Title 6 of Part 2.

(g) Any person who knowingly discloses
DNA or other forensic identification information developed pursuant to this section to an unauthorized individual or agency, or for other than identification purposes or purposes of parole or probation supervision, is guilty of a misdemeanor.

(h) Furnishing
DNA or other forensic identification information of the defendant to his or her defense counsel for criminal defense purposes in compliance with discovery is not a violation of this section.

(i) It is not a violation of this section to disseminate statistical or research information obtained from the offender's file, the computerized data bank system, any of the
DNA laboratory's data bases, or the full palm print file, provided that the subject of the file is not identified and cannot be identified from the information disclosed. It is not a violation of this section to include information obtained from a file in a transcript or record of a judicial proceeding, or in any other public record when the inclusion of the information in the public record is authorized by a court, statute, or decisional law. All requests for statistical or research information obtained from the DNA data bank shall be cataloged by the Department of Justice. Commencing January 1, 2000, the department shall submit an annual letter to the Legislature including, with respect to each request, the requester's name or agency, the purpose of the request, whether the request is related to a criminal investigation or court proceeding, whether the request was granted or denied, any reasons for denial, costs incurred or estimates of the cost of the request, and the date of the request.

(j) The Department of Justice shall make public the methodology and procedures to be used in its
DNA program prior to the commencement of DNA testing in its laboratories. The Department of Justice shall review and consider on an ongoing basis the findings and results of any peer review and validation studies submitted to the department by members of the relevant scientific community experienced in the use of DNA technology. This material shall be available to criminal defense counsel upon court order made pursuant to Chapter 10 (commencing with Section 1054) of Title 6 of Part 2.

(k) In order to maintain the computer system security of the Department of Justice
DNA and forensic identification data base and data bank program, the computer software and data base structures used by the DNA Laboratory of the Department of Justice to implement this chapter are confidential.

(l) Nothing in this section shall preclude a court from ordering discovery pursuant to Chapter 10 (commencing with Section 1054) of Title 6 of Part 2.

HISTORY:
Added Stats 1998 ch 696 § 2 (AB 1332).
Amended Stats 1999 ch 475 § 5 (SB 654).
Amended Stats 2000 ch 823 § 6 (AB 2814).



PENAL CODE
PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 6.
DNA and Forensic Identification Data Base and Data Bank Act of 1998
ARTICLE 6. Limitations on Disclosure

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Cal Pen Code § 299.6 (2001)
§ 299.6. Sharing information and procedures

(a) Nothing in this chapter shall prohibit the sharing or disseminating of population data base or data bank information with any of the following:

(1) Federal, state, or local law enforcement agencies.

(2) Crime laboratories, whether public or private, that serve federal, state, and local law enforcement agencies that have been approved by the Department of Justice.

(3) The attorney general's office of any state.

(4) Any third party that the Department of Justice deems necessary to assist the department's crime laboratory with statistical analyses of the population data base or to assist in the recovery or identification of human remains for humanitarian purposes, including identification of missing persons.

(b) Nothing in this chapter shall prohibit the sharing or disseminating of protocol and forensic
DNA analysis methods and quality control procedures with any of the following:

(1) Federal, state, or local law enforcement agencies.

(2) Crime laboratories, whether public or private, that serve federal, state, and local law enforcement agencies that have been approved by the Department of Justice.

(3) The attorney general's office of any state.

(4) Any third party that the Department of Justice deems necessary to assist the department's crime laboratory with analyses of forensic protocol, research methods, or quality control procedures.

(c) The population data base and data bank of the
DNA Laboratory of the Department of Justice may be made available to and searched by the FBI and any other agency participating in the FBI's CODIS System or any other national law enforcement data bank system.

(d) The Department of Justice may provide portions of the blood specimens and saliva samples collected pursuant to this chapter to local public
DNA laboratories for identification purposes provided that the privacy provisions of this section are followed by the local laboratory and if each of the following conditions is met:

(1) The procedures used by the local public
DNA laboratory for the handling of specimens and samples and the disclosure of results are the same as those established by the Department of Justice pursuant to Sections 297, 298, and 299.5.

(2) The methodologies and procedures used by the local public
DNA laboratory for DNA or forensic identification analysis are compatible with those established by the Department of Justice pursuant to subdivision (i) of Section 299.5, or otherwise are determined by the Department of Justice to be valid and appropriate for identification purposes.

(3) Only tests of value to law enforcement for identification purposes are performed and a copy of the results of the analysis are sent to the Department of Justice.

(4) All provisions of this section concerning privacy and security are followed.

(5) The local public
DNA laboratory assumes all costs of securing the specimens and samples and provides appropriate tubes, labels, and instructions necessary to secure the samples.

(e) Any local public
DNA laboratory that produces DNA profiles of known reference samples for inclusion within the permanent files of the state's DNA Data Bank program shall comply with and be subject to all of the rules, regulations, and restrictions of this chapter and shall follow the policies of the DNA Laboratory of the Department of Justice.

HISTORY:
Added Stats 1998 ch 696 § 2 (AB 1332). Amended Stats 1999 ch 83 § 141 (SB 966), ch 475 § 6 (SB 654) (ch 475 prevails).

PENAL CODE
PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 6.
DNA and Forensic Identification Data Base and Data Bank Act of 1998
ARTICLE 6. Limitations on Disclosure

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Cal Pen Code § 299.7 (2001)
§ 299.7. Disposal of specimens

The Department of Justice is authorized to dispose of unused specimens and samples, unused portions of specimens and samples, and expired specimens and samples in the normal course of business and in a reasonable manner as long as the disposal method is designed to protect the identity and origin of specimens and samples from disclosure to third persons who are not a part of law enforcement.

HISTORY:
Added Stats 1998 ch 696 § 2 (AB 1332).

PENAL CODE
PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 6.
DNA and Forensic Identification Data Base and Data Bank Act of 1998
ARTICLE 7. Construction and Severability

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Cal Pen Code § 300.1 (2001)
§ 300.1. Authority of Department of Justice

Nothing in this chapter shall be construed to restrict the authority of the Department of Justice with respect to data banks and data bases created by other statutory authority, including, but not limited to, data bases related to fingerprints, firearms and other weapons, child abuse, domestic violence deaths, child deaths, driving offenses, missing persons, violent crime information as described in Title 12 (commencing with Section 14200) of Part 4, and criminal justice statistics permitted by Section 13305.

HISTORY:
Added Stats 1998 ch 696 § 2 (AB 1332).

PENAL CODE
PART 2. Criminal Procedure
TITLE 3. Additional Provisions Regarding Criminal Procedure
CHAPTER 2. Time of Commencing Criminal Actions

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Cal Pen Code § 803 (2001)
§ 803. Tolling or extension of time period

(a) Except as provided in this section, a limitation of time prescribed in this chapter is not tolled or extended for any reason.

(b) No time during which prosecution of the same person for the same conduct is pending in a court of this state is a part of a limitation of time prescribed in this chapter.

(c) A limitation of time prescribed in this chapter does not commence to run until the discovery of an offense described in this subdivision. This subdivision applies to an offense punishable by imprisonment in the state prison, a material element of which is fraud or breach of a fiduciary obligation, the commission of the crimes of theft or embezzlement upon an elder or dependent adult, or the basis of which is misconduct in office by a public officer, employee, or appointee, including, but not limited to, the following offenses:

(1) Grand theft of any type, forgery, falsification of public records, or acceptance of a bribe by a public official or a public employee.

(2) A violation of Section 72, 118, 118a, 132, or 134.

(3) A violation of Section 25540, of any type, or Section 25541 of the Corporations Code.

(4) A violation of Section 1090 or 27443 of the Government Code.

(5) Felony welfare fraud or Medi-Cal fraud in violation of Section 11483 or 14107 of the Welfare and Institutions Code.

(6) Felony insurance fraud in violation of Section 548 or 550 of this code or former Section 1871.1, or Section 1871.4, of the Insurance Code.

(7) A violation of Section 580, 581, 582, 583, or 584 of the Business and Professions Code.

(8) A violation of Section 22430 of the Business and Professions Code.

(9) A violation of Section 10690 of the Health and Safety Code.

(10) A violation of Section 529a.

(11) A violation of subdivision (d) or (e) of Section 368.

(d) If the defendant is out of the state when or after the offense is committed, the prosecution may be commenced as provided in Section 804 within the limitations of time prescribed by this chapter, and no time up to a maximum of three years during which the defendant is not within the state shall be a part of those limitations.

(e) A limitation of time prescribed in this chapter does not commence to run until the offense has been discovered, or could have reasonably been discovered, with regard to offenses under Division 7 (commencing with Section 13000) of the Water Code, under Chapter 6.5 (commencing with Section 25100) of, Chapter 6.7 (commencing with Section 25280) of, or Chapter 6.8 (commencing with Section 25300) of, Division 20 of, or Part 4 (commencing with Section 41500) of Division 26 of, the Health and Safety Code, or under Section 386, or offenses under Chapter 5 (commencing with Section 2000) of Division 2 of, Chapter 9 (commencing with Section 4000) of Division 2 of, Chapter 10 (commencing with Section 7301) of Division 3 of, or Chapter 19.5 (commencing with Section 22440) of Division 8 of, the Business and Professions Code.

(f)(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a responsible adult or agency by a child under 18 years of age that the child is a victim of a crime described in Section 261, 286, 288, 288a, 288.5, 289, or 289.5.

(2) For purposes of this subdivision, a "responsible adult" or "agency" means a person or agency required to report pursuant to Section 11166. This subdivision applies only if both of the following occur:

(A) The limitation period specified in Section 800 or 801 has expired.

(B) The defendant has committed at least one violation of Section 261, 286, 288, 288a, 288.5, 289, or 289.5 against the same victim within the limitation period specified for that crime in either Section 800 or 801.

(3)(A) This subdivision applies to a cause of action arising before, on, or after January 1, 1990, the effective date of this subdivision, and it shall revive any cause of action barred by Section 800 or 801 if any of the following occurred or occurs:

(i) The complaint or indictment was filed on or before January 1, 1997, and it was filed within the time period specified in this subdivision.

(ii) The complaint or indictment is or was filed subsequent to January 1, 1997, and it is or was filed within the time period specified within this subdivision.

(iii) The victim made the report required by this subdivision to a responsible adult or agency after January 1, 1990, and a complaint or indictment was not filed within the time period specified in this subdivision, but a complaint or indictment is filed no later than 180 days after the date on which either a published opinion of the California Supreme Court, deciding whether retroactive application of this section is constitutional, becomes final or the United States Supreme Court files an opinion deciding the question of whether retroactive application of this subdivision is constitutional, whichever occurs first.

(iv) The victim made the report required by this subdivision to a responsible adult or agency after January 1, 1990, and a complaint or indictment was filed within the time period specified in this subdivision, but the indictment, complaint, or subsequently filed information was dismissed, but a new complaint or indictment is or was filed no later than 180 days after the date on which either a published opinion of the California Supreme Court, deciding whether retroactive application of this section is constitutional, becomes final or the United States Supreme Court files an opinion deciding the question of whether retroactive application of this subdivision is constitutional, whichever occurs first.

(B)(i) If the victim made the report required by this subdivision to a responsible adult or agency after January 1, 1990, and a complaint or indictment was filed within the time period specified in this subdivision, but the indictment, complaint, or subsequently filed information was dismissed, a new complaint or indictment may be filed notwithstanding any other provision of law, including, but not limited to, subdivision (c) of Section 871.5 and subdivision (b) of Section 1238.

(ii) An order dismissing an action filed under this subdivision, which is entered or becomes effective at any time prior to 180 days after the date on which either a published opinion of the California Supreme Court, deciding the question of whether retroactive application of this section is constitutional, becomes final or the United States Supreme Court files an opinion deciding the question of whether retroactive application of this subdivision is constitutional, whichever occurs first, shall not be considered an order terminating an action within the meaning of Section 1387.

(iii) Any ruling regarding the retroactivity of this subdivision or its constitutionality made in the course of the previous proceeding, including any review proceeding, shall not be binding upon refiling.

(g)(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, 289, or 289.5.

(2) This subdivision applies only if both of the following occur:

(A) The limitation period specified in Section 800 or 801 has expired.

(B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual, and there is independent evidence that clearly and convincingly corroborates the victim's allegation. No evidence may be used to corroborate the victim's allegation that otherwise would be inadmissible during trial. Independent evidence does not include the opinions of mental health professionals.

(3)(A) This subdivision applies to a cause of action arising before, on, or after January 1, 1994, the effective date of this subdivision, and it shall revive any cause of action barred by Section 800 or 801 if any of the following occurred or occurs:

(i) The complaint or indictment was filed on or before January 1, 1997, and it was filed within the time period specified in this subdivision.

(ii) The complaint or indictment is or was filed subsequent to January 1, 1997, and it is or was filed within the time period specified within this subdivision.

(iii) The victim made the report required by this subdivision to a law enforcement agency after January 1, 1994, and a complaint or indictment was not filed within the time period specified in this subdivision, but a complaint or indictment is filed no later than 180 days after the date on which either a published opinion of the California Supreme Court, deciding the question of whether retroactive application of this subdivision is constitutional, becomes final or the United States Supreme Court files an opinion deciding the question of whether retroactive application of this subdivision is constitutional, whichever occurs first.

(iv) The victim made the report required by this subdivision to a law enforcement agency after January 1, 1994, and a complaint or indictment was filed within the time period specified in this subdivision, but the indictment, complaint, or subsequently filed information was dismissed, but a new complaint or indictment is filed no later than 180 days after the date on which either a published opinion of the California Supreme Court, deciding the question of whether retroactive application of this subdivision is constitutional, becomes final or the United States Supreme Court files an opinion deciding the question of whether retroactive application of this subdivision is constitutional, whichever occurs first.

(B)(i) If the victim made the report required by this subdivision to a law enforcement agency after January 1, 1994, and a complaint or indictment was filed within the time period specified in this subdivision, but the indictment, complaint, or subsequently filed information was dismissed, a new complaint or indictment may be filed notwithstanding any other provision of law, including, but not limited to, subdivision (c) of Section 871.5 and subdivision (b) of Section 1238.

(ii) An order dismissing an action filed under this subdivision, which is entered or becomes effective at any time prior to 180 days after the date on which either a published opinion of the California Supreme Court, deciding the question of whether retroactive application of this section is constitutional, becomes final or the United States Supreme Court files an opinion deciding the question of whether retroactive application of this subdivision is constitutional, whichever occurs first, shall not be considered an order terminating an action within the meaning of Section 1387.

(iii) Any ruling regarding the retroactivity of this subdivision or its constitutionality made in the course of the previous proceeding, by any trial court or any intermediate appellate court, shall not be binding upon refiling.

(h)(1) Notwithstanding the limitation of time described in Section 800, the limitations period for commencing prosecution for a felony offense described in subparagraph (A) of paragraph (2) of subdivision (a) of Section 290, where the limitations period set forth in Section 800 has not expired as of January 1, 2001, or the offense is committed on or after January 1, 2001, shall be 10 years from the commission of the offense, or one year from the date on which the identity of the suspect is conclusively established by
DNA testing, whichever is later, provided, however, that the one-year period from the establishment of the identity of the suspect shall only apply when either of the following conditions is met:

(A) For an offense committed prior to January 1, 2001, biological evidence collected in connection with the offense is analyzed for
DNA type no later than January 1, 2004.

(B) For an offense committed on or after January 1, 2001, biological evidence collected in connection with the offense is analyzed for
DNA type no later than two years from the date of the offense.

(2) In the event the conditions set forth in subparagraph (A) or (B) of paragraph (1) are not met, the limitations period for commencing prosecution for a felony offense described in subparagraph (A) of paragraph (2) of subdivision (a) of Section 290, where the limitations period set forth in Section 800 has not expired as of January 1, 2001, or the offense is committed on or after January 1, 2001, shall be 10 years from the commission of the offense.

(3) For purposes of this section, "
DNA" means deoxyribonucleic acid.

HISTORY:
Added Stats 1984 ch 1270 § 2. Amended Stats 1985 ch 122 § 1, effective July 1, 1985, ch 357 § 1; Stats 1986 ch 220 § 12, effective June 30, 1986, ch 959 § 1; Stats 1987 ch 246 § 2, ch 1336 § 3, effective September 29, 1987, ch 1477 § 11.5; Stats 1988 ch 1186 § 4, ch 1609 § 6; Stats 1989 ch 1312 § 1; Stats 1990 ch 587 § 2 (SB 1782); Stats 1993 ch 390 § 1 (AB 290); Stats 1st Ex Sess 1993-94 ch 46 § 2 (AB 25 X), effective November 30, 1994; Stats 1994 ch 1031 § 4 (AB 1691); Stats 1996 ch 130 § 1 (AB 2014) (ch 130 prevails), ch 1023 § 389.1 (SB 1497), effective September 29, 1996; Stats 1997 ch 29 § 1 (AB 700), effective June 30, 1997; Stats 1998 ch 879 § 32 (SB 2238), ch 944 § 2 (AB 190).
Amended Stats 1999 ch 706 § 10 (AB 1236), effective October 10, 1999, ch 983 § 17 (SB 1307).
Amended Stats 2000 ch 235 § 1 (AB 1742).

NOTES:
FORMER SECTIONS:
Former § 803, relating to when indictment found and presented, was enacted Stats 1872 and repealed Stats 1984 ch 1270 § 1.

EDITOR'S NOTES:
H & S C § 10690, which is referred to in subd (c)(9) of this section and related to a false certification or affidavit in proceedings to establish a birth record, was repealed in 1995; that material is now found in H & S C § 103800.

AMENDMENTS:
1985 Amendment:
Added (1) "of any type" in subd (c)(3); and (2) subd (e). (As amended Stats 1985 ch 357, compared to the section as it read prior to 1985. This section was also amended by an earlier chapter, ch 122. See Gov C § 9605.)
1986 Amendment:
(1) Added the commas before "a material element" and before "but not limited" in the introductory clause of subd (c); and (2) amended subd (e) by substituting (a) "offenses" for "those offenses set forth" after "with regard to"; and (b) "Chapter 6.5 (commencing with Section 25100) of Division 20 or Part 4 (commencing with Section 41500) of Division 26" for "those offenses set forth under Chapter 6.5 (commencing with Section 25100) of Division 20". (As amended Stats 1986 ch 959, compared to the section as it read prior to 1986. This section was also amended by an earlier chapter, ch 220. See Gov C § 9605.)
1987 Amendment:
(1) Amended subd (c) by (a) adding the comma before "the following" in the introductory clause and the commas before and after "of any type" in subd (c)(3); and (b) subds (c)(6)-(c)(9); and (2) added ", Section 386" at the end of the section. (As amended Stats 1987 ch 1477, compared to the section as it read prior to 1987. This section was also amended by two earlier chapters, ch 246 and ch 1336. See Gov C § 9605.)
1988 Amendment:
(1) Added subd (c)(6); (2) redesignated former subds (c)(6)-(c)(9) to be subds (c)(7)-(c)(10); and (3) amended subd (e) by (a) substituting ", under" for "or" after "Water Code"; (b) adding ", Chapter 6.7 (commencing with Section 25280), or Chapter 6.8 (commencing with Section 25300)"; and (c) adding "under" after ", or" near the end. (As amended Stats 1988 ch 1609, compared to the section as it read prior to 1988. This section was also amended by an earlier chapter, ch 1186. See Gov C § 9605.)
1989 Amendment:
Added subd (f).
1990 Amendment:
(1) Added "Section" after "type, or" in subd (c)(3); (2) substituted "Section 1871.1" for "Section 556" in subd (c)(6); and (3) amended the first paragraph of subd (f) by (a)deleting the comma after "17 years of age" ; and (b) substituting "Section" for "Sections".
1993 Amendment:
In addition to making technical changes, (1) amended subd (f) by (a) substituting "18 years" for "17 years" in the first paragraph; (b) substituting "288.5, 289, or 289.5" for "or 289" both times it appears; (c) substituting "apply only if both of the following occur" for "only apply if" in the introductory clause of the second paragraph; and (d) substituting the period for ", and" at the end of subd (1) in the second paragraph; and (2) added subd (g).
1994 Amendment (Ex Sess):
Amended subd (f) by adding (1) ", or in section 647.6 if the offense involved great bodily injury" at the end of the first sentence; and (2) ", or of section 647.6 if the offense involved great bodily injury," in subd (2).
1994 Amendment (Reg Sess):
(1)Substituted "Section 548 or 550 of this code or former Section 1871.1, or Section 1871.4," for "Section 548 of this code or Section 1871.1" in subd (c)(6); and (2) amended subd (f) by deleting (a) ", or in section 647.6 if the offense involved great bodily injury" at the end of the first sentence; and (b) ", or of section 647.6 if the offense involved great bodily injury," after "289, or 289.5" in subd (2).
1996 Amendment:
In addition to making technical changes, (1) redesignated and added subdivision designations; (2) substituted "chapter" for "section" in subds (f)(1) and (g)(1); (3) added"required to report" in subd (f)(2); (4) added subd (f)(3); and (5) added subd (g)(3).
1997 Amendment:
Substituted (1) subd (f)(3) for former subd (f)(3) which read: "(3) (A) Effective July 1, 1997, this subdivision applies to a cause of action arising before, on, or after January 1, 1990, the effective date of this subdivision, and if the complaint is filed within the time period specified in this subdivision, it shall revive any cause of action barred by Section 800 or 801.
"(B) Effective January 1, 1997, through June 30, 1997, this subdivision applies to a cause of action arising before, on, or after January 1, 1990, the effective date of this subdivision, and it shall revive any cause of action barred by Section 800 or 801 if either of the following occurs:
"(i) The complaint is filed within the time period specified in this subdivision.
"(ii) The victim made the report required by this subdivision to a responsible adult or agency between January 1, 1990, and January 1, 1997, and a complaint was not filed within the time period specified in this subdivision or was filed within the time period but was dismissed, and a complaint is filed or refiled on or before June 30, 1997."; and (2) subd (g)(3) for former subd (g)(3) which read: "(3) (A) Effective July 1, 1997, this subdivision applies to a cause of action arising before, on, or after January 1, 1994, the effective date of this subdivision, and if the complaint is filed within the time period specified in this subdivision, it shall revive any cause of action barred by Section 800 or 801.
"(B) Effective January 1, 1997, through June 30, 1997, this subdivision applies to a cause of action arising before, on, or after January 1, 1994, the effective date of this subdivision, and it shall revive any cause of action barred by Section 800 or 801 if either of the following occurs:
"(i) The complaint is filed within the time period specified in this subdivision.
"(ii) The victim made the report required by this subdivision to a law enforcement agency between January 1, 1994, and January 1, 1997, and a complaint was not filed within the time period specified in this subdivision or was filed within the time period but was dismissed, but a complaint is filed or refiled on or before June 30, 1997."
1998 Amendment:
Amended subd (c) by adding (1) "the" after "run until" in the first sentence; (2) ", the commission of the crimes of theft or embezzlement upon an elder or dependent adult," in the introductory clause; and (3) subd (c)(11).

HISTORICAL DERIVATION:
(a) Former Pen C § 802, as amended Code Amdts 1880 ch 47 § 10, Stats 1935 ch 193 § 2, Stats 1951 ch 1674 § 23.
(b) Former Pen C § 802.5, as added Stats 1981 ch 1017 § 3.
(c) Criminal Practice Act § 99 (Stats 1851 ch 29 § 99).
(d) Stats 1850 ch 119 § 100.
(e) NY Code Crim Proc § 143.

EDITOR'S NOTES:
For legislative intent, see 1985 Note following Pen C § 805.

NOTE-
Stats 1990 ch 587 provides:
SEC. 3. The amendments to Sections 801.5 and 803 of the Penal Code made by this act apply to violations of Section 1871.1 of the Insurance Code committed during, as well as after, 1990.

OFFICIAL COMMENT:

LAW REVISION COMMISSION COMMENTS:
1984--Subdivision (a) of Section 803 supersedes former Section 802.
Subdivision (b) continues the substance of former Section 802.5. The limitation of former Section 802.5 that permitted recommencing the same "criminal action" is replaced by a broader standard of prosecution for the "same conduct," drawn from Model Penal Code § 1.06(6)(b). The former law that provided tolling only for a subsequent prosecution for the same offense was too narrow, since the dismissal may have been based upon a substantial variation between the previous allegations and the proof. The test of the "same conduct," involving as it does some flexibility of definition, states a principle that should meet the reasonable needs of prosecution, while affording the defendant fair protection against an enlargement of the charges after running of the statute. It should be noted that subdivision (b) provides tolling only for a prosecution pending in state, not federal, court.
Subdivision (d) supersedes former Section 802. The statute of limitations may be satisfied as to a defendant absent from the state by issuing an arrest warrant. See Section 804 (commencement of prosecution).

CROSS REFERENCES:
Acceptance of bribe by public official: Pen C § 70.
Presenting false claims to public body: Pen C § 72.
Falsification of public records: Pen C § 115.
Perjury: Pen C § 118.
False affidavit concerning affiant's testimony: Pen C § 118a.
Offering false evidence: Pen C § 132.
Preparing false evidence: Pen C § 134.
Rape: Pen C § 261.
Sodomy: Pen C § 286.
Lewd or lascivious acts involving children: Pen C § 288.
Oral copulation: Pen C § 288a.
Continuous sexual abuse of child: Pen C § 288.5.
Penetration by foreign object: Pen C § 289.
Fleeing of state by sex offender: Pen C § 289.5.
Installation of inoperable fire protection system: Pen C § 386.
Forgery: Pen C §§ 470 et seq.
Grand theft: Pen C § 487.
Manufacture or sale of false birth or baptism certificate: Pen C § 529a.
Duty to report suspected child abuse: Pen C § 11166.
Fraud involving qualification of health practitioner: B & P C §§ 580 et seq.
Manufacture or sale of false identification document: B & P C § 22430.
Violations of corporate securities laws: Corp C §§ 25540, 25541.
Interest of state or local officials in public contracts: Gov C § 1090.
Self-dealing in connection with estate administration by public administrator or other similar official: Gov C § 27443.
Hazardous waste control: H & S C §§ 25100 et seq.
Underground storage of hazardous waste: H & S C §§ 25280 et seq.
Hazardous substance account: H & S C §§ 25300 et seq.
Nonvehicular air pollution control: H & S C §§ 41500 et seq.
Regulation of water quality: Wat C §§ 13000 et seq.

COLLATERAL REFERENCES:
Witkin & Epstein, Criminal Law (2d ed) §§ 372, 374, 375, 379, 2084.
Cal Jur 3d (Rev) Criminal Law §§ 2265, 2758.
Taking a closer look: significant new California legislation enacted in 1988. 12 CEB Real Prop L Rep No. 2 p 55.
A prosecution for fraudulent voting requires proof of specific intent; such proof need not be by direct and positive evidence, but may be inferred from circumstantial evidence. The statute of limitations for fraudulent voting commences upon the discovery or completion of the offense, whichever is later. Statements of admission alone are not sufficient to support a conviction for fraudulent voting of a person who unlawfully registers to vote or who, being unlawfully registered, votes in an election; however, slight or circumstantial evidence is all that is necessary to establish that a crime has been committed. 81 Ops. Cal. Atty. Gen. 321.

FORMS:
Suggested form is set out below, following notes of decisions.

LAW REVIEW ARTICLES:
Failure to plead limitations. 23 Cal LR 525.

ANNOTATIONS:
Issuance or service of state-court arrest warrant, summons, citation, or other process as tolling criminal statute of limitations. 71 ALR4th 554.


1. In General
2. Discovery of Offense
3. Sex Offenses Involving Children

1. NOTES OF DECISIONS
In General
The application of Pen. Code, § 803, subd. (b) (providing that the statute of limitations does not include time spent on the prosecution of same person for the same offense) and its predecessor statute (former § 802.5) to crimes committed before their enactment but prior to expiration of the former three-year statute of limitations does not violate the constitutional prohibition against ex post facto laws. constitutional prohibition against ex post facto laws. Harris v Superior Court (1988, 1st Dist) 201 Cal App 3d 624, 247 Cal Rptr 620.
In a prosecution for sexual offenses involving two female victims, the trial court erred in failing to give defendant's requested instructions on prostitution (Pen. Code, § 647, subd. (b)) as a lesser related offense, and such error required reversal of defendant's rape convictions. The filing of the information tolled the statute of limitations not only as to the charged rapes, but also as to offenses based on the "same conduct" as the charged rapes (Pen. Code, § 803, subd. (b)). The "conduct" at issue was sexual intercourse between defendant and the two victims, both of whom claimed the conduct constituted rape while defendant claimed it was prostitution. Since the prostitution offenses were based on the same conduct as the rapes for which defendant was being prosecuted, the filing of the information tolled the statute of limitations. Therefore, the instructions requested by defendant should have been given. It could not be said that a properly instructed jury could not have believed defendant's testimony as to the rape charges and found that he in fact engaged in consensual acts of intercourse and only thereafter resorted to forcible sexual conduct. Thus, the refusal to instruct was prejudicial. People v Whitfield (1993, 3rd Dist) 19 Cal App 4th 1652, 24 Cal Rptr 2d 210.
A criminal statute of limitations period, in effect on the date of an alleged offense, may lawfully be extended before, but not after, it has run as to the offense. Accordingly, in a prosecution for lewd acts on a child committed from 1965 to 1972, which were then subject to a three-year limitations period that expired no later than August 1975 (Pen. Code, former § 801), the trial court erred in overruling defendant's demurrer to the complaint. The application of Pen. Code, § 803, subd. (g), effective Jan. 1, 1994, providing a limitations period of one year from the date a person of any age reports that he or she was a victim of a lewd act while under the age of eighteen years, would violate ex post facto protections (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9). However characterized, the application of the new statute would operate to extend the already expired three-year limitations period applicable to the charged offenses. The ex post facto prohibition applied even though application of the new statute may not have deprived defendant of a right or defense "available at the time" the offense was allegedly committed; a statute of limitations defense necessarily can be asserted only after a certain delay in the commencement of prosecution. Lynch v Superior Court (1995, 2nd Dist) 33 Cal App 4th 1223, 39 Cal Rptr 2d 414.
A defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense. Thus, if the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time. In the present prosecution for perjury, which had to be commenced within three years after its discovery, the information was filed more than three years after the date it alleged defendant committed the crime. People v Williams (1999) 21 Cal 4th 335, 87 Cal Rptr 2d 412, 981 P2d 42.
The tolling provision of Pen C § 803(b), which states that it is applicable to any "limitation of time prescribed in this chapter" is applicable to the misdemeanor offense of driving with a suspended license. The limitation period for commencing a prosecution for this offense is set forth in Pen C § 802(a), which is contained in the same chapter as § 803. People v Chardon (1999, 6th Dist) 77 Cal App 4th 205, 214, 91 Cal Rptr 2d 438.
In a prosecution for multiple counts of grand theft and insurance fraud in which it was agreed that the charges were subject to a three-year statute of limitations and that the indictment was not issued within three years of any of the alleged offenses, evidence that arrest warrants issued within three years of the offenses did not adequately prove that the statute of limitations had not run (Pen C §§ 803, 804). Although the issuance of the warrants may have commenced an earlier prosecution in municipal court intended to culminate in the issuance of an information, it did not commence the instant prosecution, which began with the grand jury's indictment. While the prosecution presented sufficient evidence to show the prior prosecution commenced before the statute of limitations had run, it presented no evidence to show how long the statute was tolled by that prosecution. People v Le (2000, 4th Dist) 82 Cal App 4th 1352, 98 Cal Rptr 2d 874.

2. Discovery of Offense
Under Pen. Code, § 803, subd. (c) (statute of limitations does not run until discovery of offense), it is the burden of the prosecution to prove by a preponderance of the evidence that the "legal discoverer" knew no facts constituting constructive notice of the crime, exercised reasonable diligence, and did not negligently perform his duties so as to allow the crime to remain undiscovered. The statute commences to run after one has knowledge of facts sufficient to make a reasonably prudent person suspicious of fraud, thus putting him on inquiry. The identity of the perpetrator of the crime is not an element of the discovery issue. The question is whether there is sufficient knowledge that a crime has been committed. People v Crossman (1989, 6th Dist) 210 Cal App 3d 476, 258 Cal Rptr 370.
After a 69-count information was filed charging defendants with multiple felony offenses arising out of certain business activities generally involving the brokering of loans to lenders where lenders received interests in promissory notes secured by deeds of trust on real property, the trial court erred in granting defendants' Pen. Code, § 995, motion to set aside the information as to the 17 counts based on violations of Corp. Code, § 25110 (proscribing the offer or sale of unqualified securities). Given the clear manifestation of legislative intent, Pen. Code, § 803, subd. (c) ("discovery" rule tolling otherwise applicable statute of limitations), extends the statute of limitations tolling provision to "any type" of violation of the Corporate Securities Law made punishable under Corp. Code, § 25540, including Corp. Code, § 25110. There is no irreconcilable conflict in the statutory language. The violation of Corp. Code, § 25110, is, by virtue of its coming within the ambit of Corp. Code, § 25540, one of the criminal offenses to which Pen. Code, § 803, subd. (c), is applicable, even though that offense does not have as a "material element" either fraud or breach of a fiduciary duty. While a violation of Corp. Code, § 25110, can be proven without evidence of a specific intent or motive to defraud, it nonetheless involves a fraudulent deception upon the buyer by the unqualified securities seller. People v Fine (1997, 2nd Dist) 52 Cal App 4th 1258, 61 Cal Rptr 2d 254.

3. Sex Offenses Involving Children
Ordinarily, a prosecution under Pen. Code, § 288 (lewd acts with children), must be commenced within six years after the offense is committed. There is an exception to this six-year limitation period, set forth in Pen. Code, § 803, subd. (f), that applies to certain sex offenses committed against a minor. By its terms, Pen. Code, § 803, subd. (f), applies "only if": (1) the limitation period has expired; and (2) the defendant has committed at least one violation of the enumerated sex offenses against the same victim within the limitation period. Pursuant to this statutory language and the statute's legislative history, Pen. Code, § 803, subd. (f), applies only if there are at least two offenses alleged, one committed within the general limitations period and one which would otherwise be time-barred. Pen. Code, § 803, subd. (f), does not apply if the felony complaint charges an offenses that may have occurred either before or after the expiration of the six-year limitations period. The statute contains two conditions, each of which must occur. A single offense that may have been committed either within or outside the applicable limitation period does not satisfy these two prerequisites. People v Olecik (1995, 6th Dist) 33 Cal App 4th 1062.
Pen. Code, § 803, subd. (f), provides for an exception to the six-year limitation period for commencing a prosecution for lewd acts with children, which applies if there are at least two offenses alleged, one committed within the general limitations period and one which would otherwise be time-barred. Pen. Code, § 803, subd. (f), was enacted to address a recurring difficulty in prosecuting cases of child victimization, that is, the fact that many such cases remain unreported for years. Children are often very young, confused, and guilty, and they are afraid to report or may not even know that what happened is indeed a crime. As a result, many cases of child victimization cannot be prosecuted simply because the child did not report it until a number of years later and the statute of limitations had expired. An additional problem is that some abusers, particularly those with authority over the child, threaten and intimidate the child in order to keep the activity secret. The statute prevents child abusers from going unpunished simply because their victims were too young to report the crime within the period prescribed in the statute of limitations. People v Olecik (1995, 6th Dist) 33 Cal App 4th 1062.
Pen. Code, § 803, subd. (f), extends the statute of limitations for bringing a prosecution for certain sex offenses committed against a minor. The statute applies if (1) a criminal complaint is filed within one year of the date of a report of the offense; (2) the report is made to a responsible adult or agency; (3) the report is made by a child under 17 years; (4) the report indicates that the child is a victim of an enumerated sex offense; (5) the defendant has allegedly committed at least one offense outside the normal limitations periods specified in Pen. Code, § 800, or Pen. Code, § 801; and (6) the defendant has allegedly committed at least one offense within the normal limitation period for the enumerated offenses. People v Olecik (1995, 6th Dist) 33 Cal App 4th 1062.
Pen. Code, § 803, subd. (f), extends the six-year limitation period for commencing a prosecution for lewd acts with children if there are at least two offenses alleged, one committed within the general limitations period and one which would otherwise be time-barred. Under Pen. Code, § 803, subd. (f), the prosecution must be commenced within one year of the minor's report of the sexual abuse. Although Pen. Code, § 803, subd. (f), refers to the filing of a criminal complaint, any of the events listed in Pen. Code, § 804, would also commence prosecution under Pen. Code, § 803, subd. (f), and therefore toll the statute of limitations so long as the Pen. Code, § 804, events occurred within one year of the report. What is important is that prosecution commence within one year of the report. Whether the prosecution commences upon the filing of the complaint, issuance of the arrest warrant, certification of the case to superior court, or filing of the information is not dispositive so long as the one-year limitation period is satisfied. People v Olecik (1995, 6th Dist) 33 Cal App 4th 1062.
A prosecution for six counts of forcible lewd acts committed upon a child under the age of fourteen (Pen. Code, § 288, subd. (b)) fell within the extension to the limitations period of Pen. Code, § 803, subd. (f), for prosecutions charging multiple sexual offenses against a child at least one of which falls within, and at least one of which falls outside, the normal statutory period. The prosecution, commenced Mar. 6, 1992, charged defendant with the six counts of forcible lewd conduct, two of which were alleged to have occurred in each of 1985, 1986, and 1987. The evidence at the preliminary hearing was sufficient to establish probable cause that the two predicate offenses took place. The victim testified that the acts took place while she lived with defendant (her mother's husband) from 1985 to 1988. Any offenses occurring in 1985 were outside, and any occurring in 1987, were within the six-year period of Pen. Code, § 800. The information alleged acts in each of these years. The People's amendment to the information to allege six offenses occurring between Jan. 1, 1985, and Dec. 31, 1987, did not defeat the applicability of Pen. Code, § 803, subd. (f). It is not required that a defendant be convicted of the two predicate offenses under Pen. Code, § 803, subd. (f), it is only required that the People allege facts sufficient to establish probable cause that the prosecution falls within the statute. In this case, defendant did not dispute the date of any alleged molestation; instead he denied any molestation occurred. Thus, he was not prejudiced by the amendment. People v Olecik (1995, 6th Dist) 33 Cal App 4th 1062.
Defendant's convictions on two counts of a lewd act on a child (Pen. Code, § 288) were not barred by the six-year statute of limitation in Pen. Code, § 800, even though both crimes were committed more than six years before the prosecution commenced, where the jury found that defendant had committed at least one violation of Pen. Code, § 288, against the same victim within six years of his prosecution. Under those circumstances, Pen. Code, § 803, subd. (f)(2), tolled the limitations period. The word "committed" in § 803 does not mean "convicted." The trial court properly left it to the trier of fact to determine if defendant had "committed" at least one violation of Pen. Code, § 288, against the same victim within the limitation period. The word "committed" is clear language with a clear meaning that encompassed the facts of the case. Because the language was not ambiguous nor reasonably susceptible of two constructions, it is not necessary to resort to the rule of construction that the language should be construed in a light most favorable to defendant. People v Garcia (1995, 5th Dist) 33 Cal App 4th 1119, 40 Cal Rptr 2d 12.
The application of Pen. Code, § 803, subd. (g), providing a limitations period of one year from the date a person of any age reports to a law enforcement agency that he or she was a victim of a lewd act on a child offense while under the age of eighteen years, is not applicable to offenses committed before the operative date of the statute, if prosecution for the offense would be barred on the operative date by the limitations period applicable before the operative date (Pen. Code, § 805.5, subd. (c)(1)). Lynch v Superior Court (1995, 2nd Dist) 33 Cal App 4th 1223, 39 Cal Rptr 2d 414.
The trial court erred in denying defendant's motion to dismiss an information charging him with lewd or lascivious acts involving a child, finding applicable the extension of the statute of limitations contained in Pen. Code, § 803, subd. (g) (information may be filed within one year of report to law enforcement of certain sex offenses by victim of any age who was under eighteen at time of offense). Defendant's former wife had submitted to law enforcement officers incriminating photographs of the alleged victim that were taken more than six years before the filing of the information. The victim had never reported any molestation, but the photographs indicated that she may have been unaware of any molestation. Section 803, subd. (g), is not implicated where the report of offenses to a law enforcement agency is made not by the victim, who is unaware he or she was so victimized, but by a person other than the victim. The words of the statute clearly and unambiguously require a report by the victim. Section 803, subd. (g), does not require the People to inform the victim of the crimes committed against him or her; it simply requires a report to law enforcement by the victim to remove the bar of the statute of limitations, absent which prosecution remains time-barred. Further, the Legislature could well have intended to enlarge the statute of limitations to accommodate only victims who are aware of offenses against them. Had it intended to include unaware victims, it could have said so explicitly. Ream v Superior Court (1996, 3rd Dist) 48 Cal App 4th 1812, 56 Cal Rptr 2d 550.
In a prosecution for forcible rape of a person under the age of 18 (Pen. Code, § 261, subd. (a)(2)) and oral copulation with a person under the age of 18 (Pen. Code, § 288a, subd. (b)(1)), based on charges that defendant sexually molested his 15-to-16-year-old daughter in 1981, and as to which the 3-year limitations period expired in 1984 (Pen. Code, former § 800), the trial court properly entered an order denying the People's motion to reinstate the complaint, filed 14 years after the alleged molestation occurred. The previously applicable statute of limitations expired before the Jan. 1, 1994, effective date of Pen. Code, § 803, subd. (g), which provides a one-year extension of an expired limitations period from the date a person of any age reports that he or she was the victim of child molestation. The filing of a proper complaint under the 1996 amendments to Pen. Code, § 803, subd. (g), specifically Pen. Code, § 803, subd. (g)(3)(B)(ii) (revival of time-barred cause of action when victim reports molestation between Jan. 1, 1994, and Jan. 1, 1997, and complaint is filed or refiled on or before June 30, 1997), on or before June 30, 1997, would revive the charges in this case. However, if either the original version of Pen. Code, § 803, subd. (g), or the amended version is construed to have such retrospective application, it would violate the ex post facto clauses of the federal and state Constitutions (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9), by operating to deprive defendant of a defense that was available to him under the law at the time the acts described in the complaint were allegedly committed. People v Bunn (1997, 1st Dist) 53 Cal App 4th 227, 61 Cal Rptr 2d 734.
Where, pursuant to Penal C § 803(g), defendant was charged with violating Penal C § 288, prohibiting lewd conduct against children, within one year after the victim reported the crime to the police and the fixed limitations period in existence when the crime occurred had run before the complaint was filed, and before § 803(g) became effective, the trial court erred in sustaining defendant's demurrer on grounds that § 803(g) constituted an impermissible ex post facto law under the United States and California Constitutions, and unfairly deprived defendant of a statute of limitations defense under the due process clauses of the United States Constitution. Defendant's challenge could not prevail under the formula prescribed in Collins v Youngblood (1990) 497 US 37 for determining when penal legislation triggers ex post facto protection. With respect to defendant's due process claim, while there is no authority specifically authorizing statutes like § 803(g) in criminal cases, the United States Supreme Court has rejected analogous attempts to retain the benefit of an expired statute of limitations as a matter of substantive due process. The high court has also indicated that any procedural due process inquiries concerning the timing of a criminal indictment are inherently factual in nature. Thus, Penal C § 803(g) is not unconstitutional per se. Here, the definition of the charged crime had not changed over time; no material revision in the language of Penal C § 288(a) had occurred between 1984, when the crime allegedly took place, and the present time. There also had been no relevant change in the punishment prescribed by Penal C § 288(a); a base term of imprisonment of three, six, or eight years may be imposed where conviction under the statute occurs. Given the unchanged nature of § 288(a) since the time defendant allegedly molested the victim, there was no basis on which to conclude that the limitations period in § 803(g) altered the definition of the charged crime or increased the applicable punishment. As to defendant's federal due process claim, the United States Supreme Court has never acknowledged a criminal defendant's fundamental interest, protected by the due process clauses, in retaining the benefit of an already expired statute of limitations against subsequent attempts to amend the time at which charges may be filed. Thus, defendant was essentially seeking the invalidation of § 803(g) by means of a new federal constitutional right based on the assumption that criminal defendants have a fundamental right to repose, once such repose is achieved under the statute of limitations then in effect. The United States Supreme Court has all but rejected this view, and the California Supreme Court rejected it. People v Frazer (1999) 21 Cal 4th 737, 742, 758, 766, 88 Cal Rptr 2d 312, 982 P2d 180.
Where (1) In 1994, defendant was charged with eight counts of lewd conduct with a child, all of which allegedly occurred between 1965 and 1972, (2) defendant demurred, contending the three-year statute of limitations in effect at the time of the charged offenses (Penal C § 803(g)) had long since expired, and that it could not be revived by a 1994 amendment extending the period of limitations to one year from the date the charged offenses were first reported to a law enforcement agency, (3) the demurrer was overruled, but defendant's petition for a writ of mandate was granted by the Court of Appeal on the ground that the attempted extension of the expired period of limitations violated defendant's constitutional protection from the ex post facto application of a new law, (4) the Supreme Court denied review, and (5) in 1997, the Legislature again amended the statute of limitations, and the day after the effective date of the amendment, defendant was charged once again with the same offenses dismissed by the Court of Appeal, to which charge defendant demurred, successfully, the trial court did not err when it denied the People's motion for an order directing the magistrate to reinstate the complaint. The 1997 amendment to Penal C § 803(g) did not, and could not, "overrule" the prior Court of Appeal decision. People v Lynch (1999, 2nd Dist) 69 Cal App 4th 313, 319, 81 Cal Rptr 2d 552.
Where defendant was convicted of multiple counts of committing a lewd act on a child, the prosecution was not time-barred under the six-year statute of limitations (Penal C § 800) even though the charges arose from acts committed five to six years before the victims reported the molestation to the police, when they turned 18. Penal C § 803(g) allows an otherwise time-barred action for sexual abuse to proceed if the prosecution files a criminal complaint within one year of the victim's allegation to the police, which the prosecution did in the present case. While application of Penal C § 804, providing that an offense is typically deemed to commence for statute of limitation purposes when the case is certified to the superior court, would have resulted in the case being commenced more than one year after the victims reported defendant to authorities, under the plain language of § 803(g), the statute designates the filing of the criminal complaint as the relevant event for determining when the prosecution has commenced. Further, Penal C § 803(g), the more specific statute insofar as it applies to a narrow class of sex offenses involving a child victim, took precedence over § 804. People v Yovanov (1999, 4th Dist) 69 Cal App 4th 392, 400, 81 Cal Rptr 2d 586.
Where defendant was convicted of multiple counts of committing a lewd act on a child, clear and convincing evidence independently corroborated one of the victim's allegations of sexual misconduct, as required by Penal C § 803(g); contrary to defendant's contention, the clear and convincing standard does not require an admission of guilt from the defendant. People v Yovanov (1999, 4th Dist) 69 Cal App 4th 392, 402, 81 Cal Rptr 2d 586.
Where defendant was convicted of multiple counts of committing a lewd act on a child, the trial court did not abuse its discretion in failing to admonish the jury, at the time a psychologist testified on the effects of child sexual abuse accommodation syndrome, that the jury was precluded from considering that testimony for the purpose of corroborating the victim's allegations under Penal C § 803(g). The court so admonished the jury in its concluding instructions, and it was not necessary to also give the instruction at the time of the psychologist's testimony. A fundamental premise of the jury system is that jurors are intelligent people who are capable of understanding and following the court's instructions. There was no indication the jury had any difficulty applying the subject instruction, and withholding it until the end of trial was sensible since it related to the manner in which the jury was supposed to conduct its deliberations. The trial court has broad discretion when to give limiting instructions. Thus, it is not obliged to give them the moment they are requested or when the limited evidence is presented; subsequent instruction can be sufficient in a proper case, and this was a proper case for subsequent instruction. People v Yovanov (1999, 4th Dist) 69 Cal App 4th 392, 407, 81 Cal Rptr 2d 586.
Penal C § 803(g), which extended the statute of limitations for certain sex offenses to one year after such crimes are reported to a law enforcement agency if the victim was under the age of 18 at the time of the offense, did not violate defendant's right to due process. The substantive portion of the Due Process Clause protects individuals from being deprived of certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. However, the protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity. The revival of a statute of limitations does not fall within any of these categories. People v Maloy (1999, 5th Dist) 70 Cal App 4th 570, 575, 82 Cal Rptr 2d 767.
Penal C § 803(g), which extended the statute of limitations for certain sex offenses to one year after such crimes are reported to a law enforcement agency if the victim was under the age of 18 at the time of the offense, did not violate the Ex Post Facto Clause of the California Constitution. It is clear that Penal C § 803(g) does not punish as a crime an act previously committed which was innocent when done. It is also obvious that the statute does not make more burdensome the punishment for a crime after its commission. The statue in no way affects the sentencing structure for the enumerated sexual offenses; it only extends the statute of limitations for those crimes. Contrary to defendant's contention that increasing the statute of limitations for the offense increases the possible punishment from zero, because he can no longer be prosecuted once the original statute of limitations expires, to the original sentencing structure, the extension of the statute of limitations does not increase the length of incarceration that the accused was exposed to at the time he committed the offense. Instead, he is exposed to the same punishment as he was at the time he committed the offense. People v Maloy (1999, 5th Dist) 70 Cal App 4th 570, 577, 82 Cal Rptr 2d 767.
In a prosecution for various sexual offenses, 18 counts of forcible lewd conduct on a child were dismissed because the statute of limitations had expired on those charges. With exceptions not applicable to this case, prosecution for an offense punishable by imprisonment in the state prison for eight years or more must be commenced within six years after commission of the offense (Penal C § 800). Although the prosecution argued that defendant's arrest amounted to a satisfaction of the rule that prosecution commences upon issuance of an arrest warrant (Penal C § 804(d)), in contrast to issuance of an arrest warrant, an arrest does not involve a finding of probable cause made by a neutral judicial officer or body. Therefore, the earliest prosecution in this case commenced on the date the case was certified to superior court. Moreover, the tolling provisions of § 803 regarding a pending prosecution were not applicable in that here the prosecution had not been commenced under § 804. People v Angel (1999, 5th Dist) 70 Cal App 4th 1141, 83 Cal Rptr 2d 222.
In a prosecution for continuous sexual abuse (Penal C § 288.5) and lewd conduct (Penal C § 288), defendant alleged the trial court had no jurisdiction over two of the counts for which he was convicted because the statute of limitations had expired on those two offenses. Although the usual statute of limitations for these offenses, Penal C § 800, had expired by the time the complaint was filed, the complaint charged that the case was being brought pursuant to Penal C § 803(g), which provides that when a person of any age reports that while he was under the age of 18, he was the victim of a crime described in Penal C § 288(a), the people can file a criminal complaint within one year. Defendant contended that the extended statute of limitations did not apply to the masturbation counts. Although the statute refers to mutual masturbation, the rule of lenity had to yield to the expression of legislative intent in the history of the statute's enactment. Defendant's acts in masturbating the victim were within the definition of mutual masturbation set forth in § 803(g) and thus qualified for the extended statute of limitations. People v Lamb (1999, 1st Dist) 76 Cal App 4th 664, 90 Cal Rptr 2d 565.

Decisions Under Former Pen C § 802

1. In General
2. Time of Absence
3. Proceedings Generally
4. Indictment or Information
5. Evidence

1. In General
Under the statute prior to 1872 the statute of limitations was tolled for crimes where the defendant left the state after commission of the crime, as well as where he was absent at the time of its perpetration. People v Montejo (1861) 18 Cal 38.
A prosecution for a misdemeanor is barred if an information is not filed within one year after its commission, provided the defendant has not been absent from the state; and the bar of the statute is mandatory. People v Ayhens (1890) 85 Cal 86, 24 P 635.
In a criminal action the court is without jurisdiction to set aside an order suspending sentence and releasing the defendant on probation for violation of the order where the probationary period has expired, since the power to revoke or modify the order is limited to the period of probation and the term of probation does not cease to run during the defendant's absence from the state. People v O'Donnell (1918) 37 Cal App 192, 174 P 102.
Where information, in prosecution for robbery, was filed about three years and sixty-two days after commission of crime, but it was pleaded and stipulated that defendant was absent from and outside boundaries of state for period of more than three months during that time, claim that statute of limitations had run against charge was without foundation. People v Cheaney (1931) 111 Cal App 55, 295 P 84.
In prosecution for escape from county jail, implied finding that defendant remained out of state sufficiently long to prevent running of statute of limitations, was sufficiently sustained by evidence, where defendant admitted that he left state immediately after escape, that he committed offense in sister state and was confined to penitentiary, and that he "was grabbed as soon as he lived" in this state. People v Thompson (1931) 119 Cal App 310, 6 P2d 301.
In criminal cases when the pleadings show that the statutory period has run and nothing is alleged to take the case out of the statute, the power to proceed is gone. People v McGee (1934) 1 Cal 2d 611, 36 P2d 378.
Provision tolling criminal statute of limitations for any period during which accused is not within this state applies when defendant is incarcerated in prison in another state despite fact that he is available for extradition. People v Sowers (1962, 3rd Dist) 204 Cal App 2d 640, 22 Cal Rptr 401.
Though Pen. Code, § 802, provides that the statutory period of limitations is tolled while an accused is outside the state, the charges against the accused may not be prosecuted more than 3 years after the commission of the offenses and more than 180 days after delivery of a written request for a final disposition of the complaint where the accused has sought to be returned to the state for an early trial within the statutory period and where the prosecution wholly fails to pursue the procedure available for his return. Zimmerman v Superior Court of Los Angeles County (1967, 2nd Dist) 248 Cal App 2d 56, 56 Cal Rptr 226.
In a burglary prosecution, the application of Pen. Code, § 802, tolling the statute of limitations during the time defendant was out of state, did not deny defendant equal protection of the laws or violate his right to travel, even though he was not in flight from prosecution at the time he left the state, no warrant had been issued either before or after he departed, and state law enforcement officials knew, or should have been able to discover his whereabouts with reasonable diligence. The assurance that an accused is available for prosecution at all times prior to the lapse of the statute of limitations is not the sole reason for the tolling provision of Pen. Code, § 802. The Legislature could have reasonably determined that the likelihood of detection of the crime and identification of the criminal is greater if the accused remains within the jurisdiction, and that because the result of an accused's departure from the state is to render discovery of the crime or the criminal more difficult, the statute of limitations should be tolled during his absence. Scherling v Superior Court of Santa Clara County (1978) 22 Cal 3d 493, 149 Cal Rptr 597, 585 P2d 219.

2. Time of Absence
This section is applicable when the defendant is charged with an ordinary offense whether he was within or without the state at the time the offense was committed. People v McGill (1935) 10 Cal App 2d 155, 51 P2d 433.
The provision of prior section that the period of limitation did not include the time when the defendant had not been "an inhabitant of, or usually resident within the state" was applicable when the defendant was charged with an ordinary offense, whether he was within or without the state at the time the offense was committed, but the information must have shown that the case came within the exception. In re Application of McGee (1938) 29 Cal App 2d 648, 85 P2d 135.
An information filed some six years and three months after commission of the offenses charged is not barred by the statute of limitations where defendant was absent from the state for approximately five years and ten months of that time. People v Levine (1952) 114 Cal App 2d 616, 250 P2d 645.

3. Proceedings Generally
In a prosecution for grand theft and forgery, the defendant had no right to complain concerning the burden of proving the issue of his absence from the state, where at no time during the trial did he request that the court instruct the jury regarding that issue. People v McGill (1935) 10 Cal App 2d 155, 51 P2d 433.
In a prosecution for forgery, where the information alleged that the defendant was absent from and not an inhabitant of the state for a certain length of time, the fact that the complaint in the municipal court did not contain such an allegation did not render the latter court without jurisdiction to commit the defendant. People v Litchman (1936) 17 Cal App 2d 252, 61 P2d 1229.
Where the information specifically charges that the defendant was outside the state during a sufficient period to bring the prosecution within the three-year limit and the evidence amply supports such allegation, a general verdict of guilty implies a finding on the portion of the charge relating to limitations. People v Allen (1941) 47 Cal App 2d 735, 118 P2d 927.

4. Indictment or Information
Where an information indicates on its face that the statute of limitations has run, if the statute has been tolled by the absence of the accused from the state it is necessary to allege that fact. In re Application of Davis (1936) 13 Cal App 2d 109, 56 P2d 302.
Where an information charging escape from a prison road camp alleged that the defendant was outside the state "since" the date of the offense, and the word "since" was obviously used in the sense of "from a definite past time until now," there was a sufficient pleading of the exception set forth in this section. In re Application of McGee (1938) 29 Cal App 2d 648, 85 P2d 135.
Accusatory pleading must allege facts showing that prosecution is not barred by statute of limitations, and if period of time in excess of that permitted by statute has elapsed since commission of offense, further facts must be alleged to show absence of defendant from State for a sufficient period to toll statute. People v Crosby (1962) 58 Cal 2d 713, 25 Cal Rptr 847, 375 P2d 839.
A conviction under Pen. Code, § 288, proscribing lewd conduct with a child, would be vacated where the record disclosed that the information had been filed more than two years after expiration of the limitation period specified in Pen. Code, § 800, and included no allegations of facts which, if supported by competent evidence, would excuse the delay, pursuant to Pen. Code, § 802, by showing the prisoner's absence from the state for such amount of time. In re Demillo (1975) 14 Cal 3d 598, 121 Cal Rptr 725, 535 P2d 1181.
In a prosecution for sale of unregistered securities, the information charging the commission of a felony, although filed beyond the three-year period set forth in Pen. Code, § 800, was not barred by the statute of limitations, where defendant was out of the state for a period of eight months, commencing about nine months after the date upon which the alleged offenses were committed. His absence from the state for the stated period tolled the statute of limitations, pursuant to Pen. Code, § 802, and rendered the filing of the information timely. People v Park (1978, 1st Dist) 87 Cal App 3d 550, 151 Cal Rptr 146.

5. Evidence
In a prosecution for grand theft and forgery, where the complaint was filed more than three years after the offenses were committed, the prosecution was required to prove the defendant's absence from the state for a sufficient period, only by a preponderance of the evidence. People v McGill (1935) 10 Cal App 2d 155, 51 P2d 433.
In a prosecution for grand theft, there was sufficient evidence under the prior section to go to the jury on the issue of the defendant's absence from the state as tolling the statute of limitations, where, though the prosecution introduced no direct evidence on the issue and the defendant testified that he was continuously a resident and that his absence did not exceed ninety days, there was rebuttal evidence as to the defendant's prior admissions of absence for more than a year. People v Allen (1941) 47 Cal App 2d 735, 118 P2d 927.
In a prosecution for escape from a state prison, testimony as to statements made by the defendant that he had been in another state, that he had been there imprisoned, and that he did not leave such state until he was apprehended for return, is competent to show his absence from the state, and, where the making of such statement is not denied, is sufficient to show that the statute of limitations was tolled. People v Hadley (1948) 88 Cal App 2d 734, 199 P2d 382.
In habeas corpus proceedings in which it appeared that the prisoner had been convicted of a felony under an information filed more than two years after expiration of the limitation period specified in Pen. Code, § 800, the Supreme Court would not exercise its discretion to permit the prosecution to present evidence for the first time in support of its contention that the prisoner had been absent from the state for a sufficient period of time to toll the statute of limitations pursuant to Pen. Code, § 802, where permitting the presentation of such evidence would require the Supreme Court to make factual determinations regarding the prisoner's whereabouts during a period approximating four years. In re Demillo (1975) 14 Cal 3d 598, 121 Cal Rptr 725, 535 P2d 1181.
The record in a prosecution for kidnap with intent to commit robbery, robbery, false imprisonment, and unlawful driving and taking of a vehicle, did not establish reversible error, even though the information on which defendant was tried showed on its face that the statute of limitations had run on the charges of robbery, false imprisonment and auto theft and contained nothing to indicate tolling of the statutes, where defendant conceded that during the time in question he was out of the state incarcerated in a Virginia prison. Pen. Code, § 802, excludes from the limitation period time during which the defendant is not within the state, and reversal or retrial for jurisdictional defects in the accusatory pleading is not required when those defects are as a matter of law cured on the undisputed record. People v Posten (1980, 1st Dist) 108 Cal App 3d 633, 166 Cal Rptr 661.

Decisions Under Former Pen C § 802.5

The Legislature enacted Pen. Code, § 802.5, tolling the statute of limitations for commencement of a criminal action upon the issuance of an arrest warrant or the finding of an indictment, and simultaneously amended Pen. Code, § 800, setting forth a three-year limitations period, with the knowledge and purpose that the changes in the tolling provisions would apply uniformly to all felony actions not already time-barred. People v Sample (1984, 1st Dist) 161 Cal App 3d 1053, 208 Cal Rptr 318.
Pen. Code, § 802.5, tolling the statute of limitations for commencement of a criminal action upon the issuance of an arrest warrant or the finding of an indictment, applied to crimes alleged to have been committed by defendant prior to its enactment, since it was enacted before the expiration of the applicable three-year statute of limitations (Pen. Code, § 800). The application of Pen. Code, § 802.5, to crimes committed before its enactment but prior to expiration of the applicable limitations period did not violate the constitutional prohibition against ex post facto laws. The enactment represented a procedural change in the law. People v Sample (1984, 1st Dist) 161 Cal App 3d 1053, 208 Cal Rptr 318.
An extension of the limitations period is a change of procedure only, to which the ex post facto doctrine does not apply; only where the statute of limitations has run before the amendment extending the time will the new limitations constitute an ex post facto law. Hence, the statute of limitations did not bar a second prosecution of defendant for theft by false pretenses (Pen. Code, § 532) after the original theft charge was dismissed on speedy trial grounds, and the trial court erred in failing to reinstate the charge, notwithstanding defendant's contention that application of Pen. Code, § 802.5 (providing that statute of limitations does not run during time criminal action is pending, should action be dismissed and later recommenced), which was enacted during the first prosecution, could not apply without impermissible ex post facto effect in that it became effective after the applicable three-year statute of limitations had run. The finding of the indictment against defendant tolled the further running of the statute of limitations, and thus § 802.5 extended the limitations period before it had expired. People v Masry (1986, 4th Dist) 179 Cal App 3d 1149, 225 Cal Rptr 174.
Where defendant was arrested more than four years after he had shot and killed a man in a bar, and charged with murder (Pen. Code, § 187) but convicted of the lesser included offense of involuntary manslaughter (Pen. Code, § 192), the application of former Pen. Code, § 802.5 (tolling of limitation statute through issuance of arrest warrant), to defendant's case in order to render the prosecution timely under the limitations statute for manslaughter (former Pen. Code, § 800) did not constitute a violation of the constitutional prohibition against ex post facto laws. Although § 802.5 was not enacted until more than one year after defendant's crime, it became effective before the expiration of the three-year limitations period, and a law that increases a limitations period or provides a new method of tolling it may be applied immediately to all crimes as to which the period has not yet run under the prior law. People v Lewis (1986, 4th Dist) 180 Cal App 3d 816, 225 Cal Rptr 782.

SUGGESTED FORMS


ALLEGATION THAT DEFENDANT WAS OUTSIDE STATE

And the District Attorney further alleges that from on or about ------ [date]
and for a period of approximately ------ years and ------ months immediately
thereafter, the defendant ------ was not inhabitant of, or usually present
within, and was outside of the State of California.

 

PART 2. Criminal Procedure
TITLE 10. Miscellaneous Proceedings
CHAPTER 11. Errors and Mistakes in Pleadings and Other Proceedings

PENAL CODE
PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 6.
DNA and Forensic Identification Data Base and Data Bank Act of 1998
ARTICLE 7. Construction and Severability

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Cal Pen Code § 300 (2001)
§ 300. Authority of law enforcement officers

Nothing in this chapter shall limit or abrogate any existing authority of law enforcement officers to take, maintain, store, and utilize
DNA or forensic identification markers, blood specimens, saliva samples, or thumb or palm print impressions for identification purposes.

HISTORY:
Added Stats 1998 ch 696 § 2 (AB 1332).



PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 6.
DNA and Forensic Identification Data Base and Data Bank Act of 1998
ARTICLE 7. Construction and Severability

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Cal Pen Code § 300.1 (2001)
§ 300.1. Authority of Department of Justice

Nothing in this chapter shall be construed to restrict the authority of the Department of Justice with respect to data banks and data bases created by other statutory authority, including, but not limited to, data bases related to fingerprints, firearms and other weapons, child abuse, domestic violence deaths, child deaths, driving offenses, missing persons, violent crime information as described in Title 12 (commencing with Section 14200) of Part 4, and criminal justice statistics permitted by Section 13305.

HISTORY:
Added Stats 1998 ch 696 § 2 (AB 1332).

PENAL CODE
PART 1. Crimes and Punishments
TITLE 9. Of Crimes Against the Person Involving Sexual Assault, and Crimes Against Public Decency and Good Morals
CHAPTER 6.
DNA and Forensic Identification Data Base and Data Bank Act of 1998
ARTICLE 7. Construction and Severability

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Cal Pen Code § 300.3 (2001)
§ 300.3. Corrections and Youth Authority duties

The duties and requirements of the Department of Corrections and the Department of the Youth Authority pursuant to this chapter shall commence on July 1, 1999.

HISTORY:
Added Stats 1998 ch 696 § 2 (AB 1332).

 

PENAL CODE
PART 2. Criminal Procedure
TITLE 10. Miscellaneous Proceedings
CHAPTER 13. Disposition of Evidence in Criminal Cases

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Cal Pen Code § 1417.9 (2001)
§ 1417.9. (Operative until January 1, 2003)Retention of biological material; Disposal

(a) Notwithstanding any other provision of law and subject to subdivision (b), the appropriate governmental entity shall retain any biological material secured in connection with a criminal case for the period of time that any person remains incarcerated in connection with that case. The governmental entity shall have the discretion to determine how the evidence is retained pursuant to this section, provided that the evidence is retained in a condition suitable for
DNA testing.

(b) A governmental entity may dispose of biological material before the expiration of the period of time described in subdivision (a) if all of the conditions set forth below are met:

(1) The governmental entity notifies all of the following persons of the provisions of this section and of the intention of the governmental entity to dispose of the material: any person, who as a result of a felony conviction in the case is currently serving a term of imprisonment and who remains incarcerated in connection with the case, any counsel of record, the public defender in the county of conviction, the district attorney in the county of conviction, and the Attorney General.

(2) The notifying entity does not receive, within 90 days of sending the notification, any of the following:

(A) A motion filed pursuant to Section 1405, however, upon filing of that application, the governmental entity shall retain the material only until the time that the court's denial of the motion is final.

(B) A request under penalty of perjury that the material not be destroyed or disposed of because the declarant will file within 180 days a motion for
DNA testing pursuant to Section 1405 that is followed within 180 days by a motion for DNA testing pursuant to Section 1405, unless a request for an extension is requested by the convicted person and agreed to by the governmental entity in possession of the evidence.

(C) A declaration of innocence under penalty of perjury that has been filed with the court within 180 days of the judgment of conviction or July 1, 2001, whichever is later. However, the court shall permit the destruction of the evidence upon a showing that the declaration is false or there is no issue of identity that would be affected by additional testing. The convicted person may be cross-examined on the declaration at any hearing conducted under this section or on an application by or on behalf of the convicted person filed pursuant to Section 1405.

(3) No other provision of law requires that biological evidence be preserved or retained.

(c) This section shall remain in effect only until January 1, 2003, and on that date is repealed unless a later enacted statute that is enacted before January 1, 2003, deletes or extends that date.

HISTORY:
Added Stats 2000 ch 821 § 2 (SB 1342), operative until January 1, 2003.



PENAL CODE
PART 4. Prevention of Crimes and Apprehension of Criminals
TITLE 12.5.
DNA

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Cal Pen Code § 14250 (2001)
§ 14250. Development of data base; Standards and guidelines

(a)(1) The Department of Justice shall develop a
DNA data base for all cases involving the report of an unidentified deceased person or a high-risk missing person.

(2) The data base required in paragraph (1) shall be comprised of
DNA data from genetic markers that are appropriate for human identification, but have no capability to predict biological function. These markers shall be selected by the department and may change as the technology for DNA typing progresses. The results of DNA typing shall be compatible with and uploaded into the CODIS DNA data base established by the Federal Bureau of Investigation. The sole purpose of this data base shall be to identify missing persons and shall be kept separate from the data base established under Chapter 6 (commencing with Section 295) of Title 9 of Part 1.

(3) The Department of Justice shall compare
DNA samples taken from the remains of unidentified deceased persons with DNA samples taken from personal articles belonging to the missing person, or from the parents or appropriate relatives of high-risk missing persons.

(4) For the purpose of this data base, "high-risk missing person" means a person missing as a result of a stranger abduction, a person missing under suspicious circumstances, a person missing under unknown circumstances, or where there is reason to assume that the person is in danger, or deceased, and that person has been missing more than 30 days, or less than 30 days in the discretion of the investigating agency.

(b) The department shall develop standards and guidelines for the preservation and storage of
DNA samples. Any agency that is required to collect samples from unidentified remains for DNA testing shall follow these standards and guidelines. These guidelines shall address all scientific methods used for the identification of remains, including DNA, anthropology, odontology, and fingerprints.

(c)(1) A coroner shall collect samples for
DNA testing from the remains of all unidentified persons and shall send those samples to the Department of Justice for DNA testing and inclusion in the DNA data bank. After the department has taken a sample from the remains for DNA analysis and analyzed it, the remaining evidence shall be returned to the appropriate local coroner.

(2) After a report has been made of a person missing under high-risk circumstances, the responsible investigating law enforcement agency shall inform the parents or other appropriate relatives that they may give a voluntary sample for
DNA testing or may collect a DNA sample from a personal article belonging to the missing person if available. The samples shall be taken by the appropriate law enforcement agency in a manner prescribed by the Department of Justice. The responsible investigating law enforcement agency shall wait no longer than 30 days after a report has been made to inform the parents or other relatives of their right to give a sample.

(3) The Department of Justice shall develop a standard release form that authorizes a mother, father, or other relative to voluntarily provide the sample. The release shall explain that
DNA is to be used only for the purpose of identifying the missing person. No incentive or coercion shall be used to compel a parent or relative to provide a sample.

(4) The Department of Justice shall develop a model kit that law enforcement shall use when taking samples from parents and relatives.

(5) Before submitting the sample to the department for analysis, law enforcement shall reverify the status of the missing person. After 30 days has elapsed from the date the report was filed, law enforcement shall send the sample to the department for
DNA testing and inclusion in the DNA data base, with a copy of the crime report, and any supplemental information.

(6) All samples and
DNA extracted from a living person shall be destroyed after a positive identification is made and a report is issued.

(d) All
DNA samples shall be confidential and shall only be disclosed to personnel of the Department of Justice, law enforcement officers, coroners, medical examiners, and district attorneys, except that a law enforcement officer may notify a victim's family to disclose whether or not a match has occurred.

(e)(1) A person who collects, processes, or stores
DNA or samples from a living person used for DNA testing under this section, who intentionally violates paragraph (6) of subdivision (c) or subdivision (d) isguilty of a misdemeanor punishable by imprisonment in a county jail.

(2) A person who collects, processes, or stores
DNA from a living person or samples from a living person used for DNA testing under this section, who intentionally violates paragraph (6) of subdivision (c) or subdivision (d) is liable in civil damages to the donor of the DNA in the amount of five thousand dollars ($ 5,000) for each violation, plus attorney's fees and costs.

HISTORY:
Added Stats 2000 ch 822 § 2 (SB 1818).



PENAL CODE
PART 4. Prevention of Crimes and Apprehension of Criminals
TITLE 12.5.
DNA

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Cal Pen Code § 14251 (2001)
§ 14251. (Operative until January 1, 2006)Funding

(a) The "Missing Persons
DNA Data Base" shall be funded by a two dollar ($ 2) fee increase on death certificates issued by a local government agency or by the State of California. The issuing agencies may retain up to 5 percent of the funds from the fee increase for administrative costs. This fee increase shall remain in effect only until January 1, 2006, or when federal funding for operation of the data base becomes available if it becomes available before that date.

(b) Funds shall be directed on a quarterly basis to the "Missing Persons
DNA Data Base Fund," hereby established, to be administered by the department for establishing and maintaining laboratory infrastructure, DNA sample storage, DNA analysis, and labor costs for cases of missing persons and unidentified remains. Funds may also be distributed by the department to various counties for the purposes of pathology and exhumation as the department deems necessary. The department may also use those funds to publicize the data base for the purpose of contacting parents and relatives so that they may provide a DNA sample for training law enforcement officials about the data base and DNA sampling and for outreach.

(c) The department shall create an advisory committee, comprised of coroners and appropriate law enforcement officials, and interested stakeholders to prioritize the identification of the backlog of unidentified remains. The identification of the backlog may be outsourced to other laboratories at the department's discretion.

(d)(1) The death certificate fee increase shall begin and funds shall be directed to the Missing Persons
DNA Data Base Fund beginning January 1, 2001. Funding for year one shall be used to develop the data base and laboratory infrastructure, and to establish Department of Justice protocols and personnel.

(2) The Department of Justice shall begin case analysis in 2002. The Department of Justice shall retain the authority to prioritize case analysis, giving priority to those cases involving children.

(3) If federal funding is made available, it shall be used to assist in the identification of the backlog of high-risk missing person cases and long-term unidentified remains.

(4) This section shall remain in effect only until January 1, 2006, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2006, deletes or extends that date.

HISTORY:
Added Stats 2000 ch 822 § 2 (SB 1818), operative until January 1, 2006.



COLORADO


COLORADO REVISED STATUTES

*** THIS SECTION IS CURRENT THROUGH THE 2000 SUPPLEMENT (2000 SESSIONS) ***

TITLE 17. CORRECTIONS
DEPARTMENT OF CORRECTIONS
PAROLE AND PROBATION
ARTICLE 2. CORRECTIONAL SERVICES
PART 2. STATE BOARD OF PAROLE

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C.R.S. 17-2-201 (2000)
17-2-201. State board of parole



(1) (a) There is hereby created a state board of parole, referred to in this part 2 as the "board", which shall consist of seven members. The members of the board shall be appointed by the governor and confirmed by the senate, and they shall devote their full time to their duties as members of such board. The governor may remove a board member for incompetency, neglect of duty, malfeasance in office, continued failure to use the risk assessment guidelines as required by section 17-22.5-404, or failure to regularly attend meetings as determined by the governor. Final conviction of a felony during the term of office of a board member shall automatically result in the disqualification of the member from further service on the board. The board shall be composed of two representatives from law enforcement, one former parole or probation officer, and four citizen representatives. The members of the board shall have knowledge of parole, rehabilitation, correctional administration, the functioning of the criminal justice system, and the issues associated with victims of crime. The three designated members of the board shall each have at least five years' education or experience, or a combination thereof, in their respective fields. No person who has been convicted of a felony or of a misdemeanor involving moral turpitude or who has any financial interests which conflict with the duties of a member of the parole board shall be eligible for appointment.

(b) The parole board in existence prior to July 1, 1987, is abolished on July 1, 1987. The governor shall appoint a new parole board pursuant to this section, two members of which shall be appointed for terms of three years, two members of which shall be appointed for terms of two years, and one member of which shall be appointed for a term of one year. Thereafter, members shall be appointed for terms of three years. If a member is appointed during a period of time in which the general assembly is not in session, that member shall serve on a temporary basis until the general assembly next convenes. No member shall serve more than three consecutive full three-year terms after the initial term. Any person who is appointed to fill a vacancy on the board and who serves at least one-half of the term of office shall be considered to have served a full term in the office for purposes of this section.

(c) The parole board in existence prior to July 1, 1990, shall be expanded to seven members on July 1, 1990. The governor shall appoint an additional law enforcement representative and an additional citizen representative to the board, one for a term of two years to expire on July 1, 1992, and one for a term of three years to expire on July 30, 1993. Thereafter, such members shall be appointed for terms of three years and shall serve no more than two consecutive full three-year terms after the initial term.

(d) The governor may appoint a temporary member to replace any member of the board who becomes temporarily incapacitated. Such temporary member shall not require senate confirmation unless he serves for a period longer than ninety days and shall serve at the pleasure of the governor or until the incapacitated member of the parole board is able to resume his duties. Any temporary member shall assume all the powers and duties of the incapacitated member. Any such temporary member shall have the same qualifications as a permanent member as defined in paragraph (a) of this subsection (1). The board may not have more than two temporary members at any time.

(2) The governor shall appoint one of the members of the board as the chairperson of the board and shall also appoint one of the members as the vice-chairperson. Such appointments are subject to change by the governor. The chairperson shall be the administrative head of the board. The chairperson shall assure that board policy and rules and regulations are enforced. The chairperson shall also assure that proper calendars for hearings are compiled and that members are assigned to conduct such hearings. The vice-chairperson shall act in the absence of the chairperson and may fulfill such administrative duties as are delegated by the chairperson.

(3) The chairperson, in addition to other provisions of law, has the following powers and duties:

(a) To promulgate rules and regulations governing the granting and revocation of parole from correctional facilities where adult offenders are confined and the fixing of terms of parole and release dates. All rules and regulations governing the granting and revocation of parole promulgated by the chairperson shall be subject to the approval of a majority of the board and shall be promulgated pursuant to the provisions of section 24-4-103, C.R.S.

Editor's note: This version of paragraph (a) is effective until July 1, 2001.

(a) To promulgate rules governing the granting and revocation of parole, including special needs parole pursuant to section 17-22.5-403.5, from correctional facilities where adult offenders are confined and the fixing of terms of parole and release dates. All rules governing the granting and revocation of parole promulgated by the chairperson shall be subject to the approval of a majority of the board and shall be promulgated pursuant to the provisions of section 24-4-103, C.R.S.

Editor's note: This version of paragraph (a) is effective July 1, 2001.

(b) To promulgate rules for the conduct of board members, the procedures for board hearings, and procedures for the board to comply with state fiscal and procurement regulations. All administrative rules and regulations promulgated by the chairperson shall be promulgated pursuant to the provisions of section 24-4-103, C.R.S.

(c) (I) To contract with licensed attorneys to serve as administrative hearing officers to conduct parole revocation hearings pursuant to rules adopted by the parole board; or

(II) To appoint an administrative law judge pursuant to the provisions of section 24-30-1003, C.R.S., to conduct parole revocation hearings pursuant to the rules and regulations promulgated pursuant to this subsection (3). Any references to the board regarding parole revocation hearings or revocation of parole shall include an administrative law judge appointed pursuant to this paragraph (c).

(d) To adopt a policy pursuant to which the board may conduct parole hearings, parole revocation hearings, and board meetings using video teleconferencing technology. At a minimum, the policy shall identify:

(I) The agenda items, if any, that the board may not consider during video teleconferences of hearings or meetings;

(II) The correctional facilities that the chairperson determines will be accessible via video teleconferencing for purposes of conducting hearings or meetings. In identifying such correctional facilities, the chairperson may include the Colorado mental health institute at Pueblo for purposes of hearings held at the institute pursuant to subsection (10) of this section.

(4) The board has the following powers and duties:

(a) To meet as often as necessary every month to consider all applications for parole. The board may parole any person who is sentenced or committed to a correctional facility when such person has served his or her minimum sentence, less time allowed for good behavior, and there is a strong and reasonable probability that the person will not thereafter violate the law and that release of such person from institutional custody is compatible with the welfare of society. If the board refuses an application for parole, the board shall reconsider the granting of parole to such person within one year thereafter, or earlier if the board so chooses, and shall continue to reconsider the granting of parole each year thereafter until such person is granted parole or until such person is discharged pursuant to law; except that, if the person applying for parole was convicted of a class 1 or class 2 crime of violence, as defined in section 16-11-309, C.R.S., any class 3 sexual offense described in part 4 of article 3 of title 18, C.R.S., a habitual criminal offense as defined in section 16-13-101 (2.5), C.R.S., or of any offense subject to the requirements of section 16-13-203, C.R.S., the board need only reconsider granting parole to such person once every three years, until the board grants such person parole or until such person is discharged pursuant to law.

(b) To conduct hearings on parole revocations as required by section 17-2-103. Such hearings shall be exempt from the requirements set forth in section 24-4-105, C.R.S. Judicial review of any revocation of parole shall be held pursuant to section 18-1-410 (1) (h), C.R.S.

(c) To issue, pursuant to rules and regulations, an order of exigent circumstances to place an offender under parole supervision immediately upon release from a correctional facility when the board is prevented from complying with publication and interview requirements due to the application of time served prior to confinement in a correctional facility and the operation of good time credits;

(d) To carry out the duties prescribed in article 11.5 of title 16, C.R.S.;

(e) To carry out the duties prescribed in article 11.7 of title 16, C.R.S.

(5) (a) As to any person sentenced for conviction of a felony committed prior to July 1, 1979, or of a misdemeanor and as to any person sentenced for conviction of an offense involving unlawful sexual behavior or for which the factual basis involved an offense involving unlawful sexual behavior, as defined in section 18-3-412.5 (1), C.R.S., committed prior to July 1, 1996, or a class 1 felony and as to any person sentenced as a habitual criminal pursuant to section 16-13-101, C.R.S., the board has the sole power to grant or refuse to grant parole and to fix the condition thereof and has full discretion to set the duration of the term of parole granted, but in no event shall the term of parole exceed the maximum sentence imposed upon the inmate by the court or five years, whichever is less.

(a.5) As to any person sentenced for conviction of an offense involving unlawful sexual behavior or for which the factual basis involved an offense involving unlawful sexual behavior as defined in section 18-3-412.5 (1), C.R.S., committed on or after July 1, 1996, the board has the sole power to grant or refuse to grant parole and to fix the condition thereof and has full discretion to set the duration of the term of parole granted, but in no event shall the term of parole exceed the maximum sentence imposed upon the inmate by the court.

(a.7) As to any person sentenced for conviction of a sex offense pursuant to the provisions of part 8 of article 13 of title 16, C.R.S., committed on or after November 1, 1998, the board shall grant parole or refuse to grant parole, fix the conditions thereof, and set the duration of the term of parole granted pursuant to the provisions of part 8 of article 13 of title 16, C.R.S.

(b) Conditions imposed for parole may include, but are not limited to, requiring that the offender pay reasonable costs of supervision of parole or placing the offender on home detention as defined in section 17-26-128 (1.1).

(c) (I) As a condition of every parole, the board shall order that the offender make restitution to the victim or victims of his or her conduct. The amount of such restitution shall be determined by the court pursuant to article 18.5 of title 16, C.R.S. The board shall fix the manner and time of payment of restitution as a condition of parole. Such order shall require the offender to make restitution within the period of time that the offender is on parole as specified by the board. In the event that the defendant does not make full restitution by the date specified by the board, the restitution may be collected as provided for in article 18.5 of title 16, C.R.S.

(II) If the offender fails to pay the restitution, he or she may be returned to the board and, upon proof of failure to pay, the board shall:

(A) (Deleted by amendment, L. 96, p. 1779, 5, effective June 3, 1996.)

(B) Order that the offender continue on parole or extend the period of parole, either subject to the same condition or modified conditions of parole; or

(C) Revoke the parole and request the sheriff of the county in which the hearing is held to transport the parolee to a place of confinement designated by the executive director; or

(D) Revoke parole for a period not to exceed one hundred eighty days and request the sheriff of the county in which the hearing is held to transport the parolee to a community corrections program pursuant to section 17-27-105 (3), a place of confinement within the department of corrections, or any private facility that is under contract with the department of corrections; or

(E) Revoke parole for a period not to exceed ninety days and request the sheriff of the county in which the hearing is held to transport the parolee to the county jail of such county or to any private facility that is under contract with the department of corrections.

(III) (Deleted by amendment, L. 2000, p. 1043, § 4, effective September 1, 2000.)

(d) If, as a condition of parole pursuant to paragraph (b) of this subsection (5), a parolee will be required to attend a postsecondary educational institution as a part of his parole plan, the board, before granting parole, shall first notify the postsecondary educational institution and the prosecuting attorney of the parolee's plan and request their comments thereon. The notice shall include all relevant information pertaining to the person and the crime for which he was convicted. The postsecondary educational institution and the prosecuting attorney shall reply to the board in writing within ten days of receipt of the notification or within such other reasonable time in excess of ten days as specified by the board. The postsecondary educational institution's reply shall include a statement of whether or not it will accept the parolee as a student. Acceptance by a state postsecondary educational institution shall be pursuant to section 23-5-106, C.R.S.

(e) As a condition of parole of every person convicted of the class 2 felony of sexual assault in the first degree under section 18-3-402 (3), C.R.S., for an offense committed prior to November 1, 1998, the board shall require that the parolee participate in a program of mental health counseling or receive appropriate treatment to the extent that the board deems appropriate to effectuate the successful reintegration of the parolee into the community.

(f) (I) As a condition of every parole, the parolee shall sign a written agreement that contains such parole conditions as deemed appropriate by the board, which conditions shall include but need not be limited to the following:

(A) That the parolee shall go directly to a place designated by the board upon his release from the institution to which he has been confined;

(B) That the parolee shall establish a residence of record and shall not change it without the knowledge and consent of his parole officer and that the parolee shall not leave the area or the state without the permission of his parole officer;

(C) That the parolee shall obey all state and federal laws and municipal ordinances, conduct himself as a law-abiding citizen, and obey and cooperate with his parole officer;

(D) That the parolee shall make reports as directed by his parole officer, permit residential visits by the parole officer, submit to urinalysis or other drug tests, and allow the parole officer to make searches of his person, residence, or vehicle;

(E) That the parolee shall not own, possess, or have under his control or in his custody any firearm or other deadly weapon;

(F) That the parolee shall not associate with any other person on parole, on probation, or with a criminal record or with any inmate of a correctional facility without the permission of his parole officer;

(G) That the parolee shall seek and obtain employment or shall participate in a full-time educational or vocational program while on parole, unless such requirement is waived by his parole officer;

(H) That the parolee shall not abuse alcoholic beverages or use illegal drugs while on parole;

(I) That the parolee shall abide by any other condition the board may determine to be necessary;

(J) That the parolee shall contact any delegate child support enforcement unit with whom the parolee may have a child support case to arrange and fulfill a payment plan to pay current child support, child support arrearages, or child support debt due under a court or administrative order.

(II) The parole agreement shall also contain a notification to the parolee that, should he violate any of the said conditions or should his behavior while on parole indicate the potentiality for criminality or violence, his parole may be subject to revocation.

(III) The provisions of this paragraph (f) shall apply to any person paroled on or after July 1, 1987, and to any person whose parole conditions are modified by the board on or after said date.

(g) (I) As a condition of parole, the board shall require any offender convicted of an offense for which the factual basis involved a sexual assault as defined in part 4 of article 3 of title 18, C.R.S., to submit to chemical testing of his blood to determine the genetic markers thereof and to chemical testing of his saliva to determine the secretor status thereof. Such testing shall occur prior to the offender's release from incarceration, and the results thereof shall be filed with and maintained by the Colorado bureau of investigation. The results of such tests shall be furnished to any law enforcement agency upon request.

(II) The provisions of this paragraph (g) shall apply to any person who is paroled on or after May 29, 1988, and to any person whose parole conditions are modified by the board on or after said date.

(III) Any costs of implementing this paragraph (g) shall be derived solely from appropriations made from moneys in the victims assistance and law enforcement fund created pursuant to section 24-33.5-506, C.R.S.

(h) (I) As a condition of parole, the board may require any person found guilty of a sexual offense under the department's code of penal discipline to submit to a testing of the person's blood to determine the genetic markers thereof and to chemical testing of his or her saliva to determine the secretor status thereof.

(II) If such testing is required, it shall occur prior to the offender's release from incarceration, and the results thereof shall be filed with and maintained by the Colorado bureau of investigation. The results of such test shall be furnished to any law enforcement agency upon request.

(III) The provisions of this paragraph (h) shall apply to any person who is so adjudicated for an act committed on or after July 1, 1999.

(i) (I) The offender shall submit to chemical testing of his or her blood to determine the genetic markers thereof and to chemical testing of his or her saliva to determine the secretor status thereof as a condition of parole for conviction of any of the following offenses:

(A) A crime of violence, as defined in 16-11-309 (2), C.R.S.;

(B) Second degree murder, in violation of section 18-3-103 (1), C.R.S.;

(C) First degree assault, in violation of section 18-3-202 (1), C.R.S.;

(D) Second degree assault, in violation of section 18-3-203 (1) (b), (1) (c), (1) (d), (1) (g), or (2) (b.5), C.R.S.;

(E) Second degree kidnapping, in violation of section 18-3-302 (4), C.R.S.;

(F) First degree arson, in violation of section 18-4-102 (3), C.R.S.;

(G) Burglary in the first degree, in violation of section 18-4-202, C.R.S.;

(H) Aggravated robbery, in violation of section 18-4-302 (4), C.R.S.

(II) Such testing shall occur prior to the offender's release from incarceration, and the results thereof shall be filed with and maintained by the Colorado bureau of investigation. The results of such tests shall be furnished to any law enforcement agency upon request.

(III) The provisions of this paragraph (i) shall apply to any person who is convicted of an offense committed on or after July 1, 1999.

(5.5) (a) As a condition of parole, the board shall require every parolee at his own expense to submit to random chemical testing of his urine to determine the presence of drugs or alcohol. Such testing shall take place as follows:

(I) Immediately upon the parolee's release from incarceration in order to establish a baseline sample;

(II) Within the first thirty days from the date of parole;

(III) On or after sixty-one days but not later than six months from the date of parole; and

(IV) Annually on or after one year from the date of parole for the duration of parole.

(b) For purposes of this subsection (5.5), "drug" means:

(I) Any "controlled substance" as defined in section 12-22-303 (7), C.R.S.; and

(II) Any "drug" as defined in section 12-22-303 (13), C.R.S., if chemical testing conducted pursuant to paragraph (a) of this subsection (5.5) reveals such drug is present at such a level as to be considered abusive pursuant to regulations established by the board in consultation with the department of human services.

(c) (I) The parole officer shall be responsible for acquiring at random, but within the time requirements of paragraph (a) of this subsection (5.5), a urine specimen from a parolee. The department of public health and environment shall designate the container to be used for the collection of such specimen. A labeling system shall be established by the department to ensure compliance with evidentiary rules and requirements.

(II) The department of public health and environment shall establish by rule and regulation the fee to be charged to the parolee pursuant to paragraph (a) of this subsection (5.5) for chemical testing of the parolee's urine. The parole officer shall collect such fee from the parolee at the same time the parole officer acquires a urine specimen pursuant to subparagraph (I) of this paragraph (c).

(III) The parole officer shall submit the urine specimen to the department of public health and environment or to a private laboratory under contract with the board pursuant to subparagraph (IV) of this paragraph (c) for testing. The department of public health and environment or the contracting laboratory shall return the results of such tests to the parole officer within five working days of receipt of the specimen. The results of the test shall be made available by the parole officer to the parolee or the parolee's attorney on request.

(IV) The board may enter into one or more contracts with private laboratories for chemical testing under this subsection (5.5). Any private laboratory that contracts with the board shall meet standards established by the department of public health and environment and shall comply with the labeling system established by the department under subparagraph (I) of this paragraph (c) to ensure compliance with evidentiary rules and requirements. Any contract entered into pursuant to this subparagraph (IV) shall specify the fee to be charged the parolee for chemical urine testing.

(d) (I) If a chemical test administered pursuant to the requirements of this subsection (5.5) reflects the presence of drugs or alcohol, the parolee may be required to participate at his own expense in an appropriate drug or alcohol program, community correctional nonresidential program, mental health program, or other fee based or nonfee based treatment program approved by the parole board.

(II) (A) Any subsequent chemical testing reflecting the presence of alcohol may be grounds for arrest of the parolee and the initiation of revocation proceedings at the discretion of the parole officer pursuant to section 17-2-103.

(B) A parolee may be arrested and a proceeding for revocation may be initiated pursuant to the provisions of section 17-2-103 if any subsequent chemical test reflects the presence of drugs pursuant to subparagraph (I) of paragraph (b) of this subsection (5.5).

(C) A parolee may be arrested and proceedings for revocation may be initiated pursuant to section 17-2-103 if any subsequent chemical test reveals the presence of drugs as defined in subparagraph (II) of paragraph (b) of this subsection (5.5) at a level considered to be abusive as established by the board pursuant to said section.

(e) A parolee who refuses to submit to chemical testing of his urine pursuant to the requirements of this subsection (5.5) shall be arrested, and revocation proceedings shall be initiated pursuant to section 17-2-103.

(f) Section 16-3-309, C.R.S., pertaining to the admissibility of laboratory tests shall apply to the admissibility of chemical tests required by this subsection (5.5) in parole revocation hearings conducted pursuant to section 17-2-103.

(g) This subsection (5.5) shall not apply to any parolee to whom article 11.5 of title 16, C.R.S., applies.

(5.7) If, as a condition of parole, an offender is required to undergo counseling or treatment, unless the parole board determines that treatment at another facility or with another person is warranted, such treatment or counseling shall be at a facility or with a person:

(a) Approved by the division of alcohol and drug abuse established in part 2 of article 2 of title 25, C.R.S., if the treatment is for alcohol or drug abuse;

(b) Certified or approved by the sex offender management board, established in section 16-11.7-103, C.R.S., if the offender is a sex offender;

(c) Certified or approved by a domestic violence treatment board, established pursuant to part 8 of article 6 of title 18, C.R.S., if the offender was convicted of or the underlying factual basis of the offense included an act of domestic violence as defined in section 18-6-800.3, C.R.S.; or

(d) Licensed or certified by the division of adult services in the department of corrections, the department of regulatory agencies, the division of mental health in the department of human services, the state board of nursing, or the state board of medical examiners, whichever is appropriate for the required treatment or counseling.

(6) The board has the authority at any time after the period of any parole is fixed to shorten the period thereof or to lengthen said period within the limits specified in subsection (5) of this section; except that the provisions of this subsection (6) shall not apply to any person sentenced as a sex offender pursuant to part 8 of article 13 of title 16, C.R.S.

(7) The board has exclusive power to conduct all proceedings involving an application for revocation of parole.

(8) The board has the power, in the performance of official duties, to issue warrants and subpoenas, to compel the attendance of witnesses and the production of books, papers, and other documents pertinent to the subject of its inquiry, and to administer oaths and take the testimony of persons under oath. The issuance of a warrant tolls the expiration of a parolee's parole.

(9) (a) (I) Whenever an inmate initially applies for parole, the board shall conduct an interview with the inmate. At such interview at least one member of the board shall be present. Any final action on an application shall not be required to be made in the presence of the inmate or parolee, and any such action shall require the concurrence of at least two members of the board. When the two members do not concur, a third member shall review the record and, if deemed necessary, interview the applicant and cast the deciding vote. Any subsequent application for parole shall be considered by the board in accordance with the provisions of section 17-2-201 (4) (a).

(II) The provisions of subparagraph (I) of this paragraph (a) shall also apply to all interviews of inmates who apply for parole pursuant to section 17-22.5-303, who were sentenced for an offense committed on or after July 1, 1979.

(b) When a recommendation has been made before the board for revocation or modification of a parole, the final disposition of such application shall be reduced to writing. The parolee shall be advised by the board of the final decision at the conclusion of the hearing or within a period not to exceed five working days following said hearing; however, a parolee may waive the five-day notice requirement. A copy of the final order of the board shall be delivered to the parolee within ten working days after the completion of the hearing.

(c) If the parolee decides to appeal the decision to revoke his parole, such appeal shall be filed within thirty days of such decision. The parolee shall remain in custody pending the appeal. Two members of the board, excluding the one who conducted the revocation proceeding, shall review the record within fifteen working days after the filing of the appeal. They shall notify the parolee of their decision in writing within ten working days after such decision has been made.

(d) The district attorney or the attorney general may appeal the decision of a member of the board to two members of the board, excluding the member who conducted the parole revocation proceeding.

(10) The board shall interview all parole applicants at the institution or in the community in which the inmate is physically held. Any inmate of an adult correctional institution who has been transferred by executive order or by civil commitment or ordered by a court of law to the Colorado mental health institute at Pueblo may be heard at the Colorado mental health institute at Pueblo upon an application for parole.

(11) Repealed.

(12) All votes of the board at any hearing or appeal held pursuant to this section shall be recorded by member and shall be a public record open to inspection and shall be subject to the provisions of part 3 of article 72 of title 24, C.R.S.

(13) (a) The board may appoint or contract with an attorney to represent a parolee at a parole revocation hearing only if:

(I) The parolee denies that he violated the condition or conditions of his parole, as set forth in the complaint;

(II) The parolee is incapable of speaking effectively for himself;

(III) The parolee establishes to the satisfaction of the board that he is indigent; and

(IV) The board, after reviewing the complaint, makes specific findings in writing that the issues to be resolved are complex and that the parolee requires the assistance of counsel.

(b) Repealed.

HISTORY: Source: L. 87: (3)(c), (7), (8), and (9)(b) amended, p. 954, § 56, effective March 13; (1)(b) amended, p. 906, § 11, effective June 15; (1) and (9)(c) amended and (5)(f) and (13) added, pp. 651, 653, § § 7, 8, effective July 1; (5.5) added, p. 660, § 1, effective July 1.L. 88: (5)(g) added, p. 701, § 1, effective May 29; (5)(b) amended, p. 709, § 5, effective July 1.L. 90: (1)(a) and (1)(b) amended and (1)(c) and (1)(d) added, p. 959, § 1, effective June 7.L. 91: (10) amended, p. 1142, § 5, effective May 18; (4)(d) and (5.5)(g) added, p. 442, § § 6, 7, effective May 29.L. 92: (1)(a) amended, p. 2172, § 22, effective June 2; (4)(e) added, p. 461, § 5, effective June 2; (5)(f)(I)(H) and (5)(f)(I)(I) amended and (5)(f)(I)(J) added, p. 211, § 14, effective August 1.L. 94: (1)(b), (3)(c), (4)(a), (7), (8), (9)(a)(I), and (9)(b) amended, pp. 2595, 2596, 2598, § § 3, 4, 5, 8, effective June 3; (5.5)(b)(II) and (5.5)(c) amended, p. 2732, § 355, effective July 1.L. 95: (3)(c) and (9)(b) amended, p. 1272, § 5, effective June 5; (5.5)(c) amended, p. 465, § 9, effective July 1.L. 96: (5)(c) amended, p. 1779, § 5, effective June 3; (5)(a) amended and (5)(a.5) added, p. 1584, § 6, effective July 1.L. 97: (5)(c)(I) amended, p. 1566, § 14, effective July 1.L. 98: (13)(b) repealed, p. 727, § 9, effective May 18; (5)(a.7) added and (5)(e) and (6) amended, p. 1291, § § 10, 11, effective November 1.L. 99: (5)(h) and (5)(i) added, p. 1168, § 2, effective July 1.L. 2000: (11) repealed, p. 842, § 28, effective May 24; (3)(d) added, p. 1056, § 1, effective May 26; (5.7) added, p. 236, § 7, effective July 1; (5)(c) amended, p. 1043, § 4, effective September 1; (3)(a) amended, p. 1496, § 3, effective July 1, 2001.




TITLE 17 Editor's note: This title was originally enacted as articles 17 and 18 of chapter 39 in C.R.S. 1963. The substantive provisions of this title (formerly entitled "Parole and Probation") were repealed and reenacted in 1977, causing some addition, relocation, and elimination of sections as well as subject matter. For prior amendments, consult the red book table distributed with the session laws; the 1986 replacement volume and the original volume of C.R.S. 1973, and annual supplements to these volumes prior to 1977; the comparative table located with the index; and C.R.S. 1963.

ARTICLE 2 Editor's note: Prior to the repeal and reenactment of this title in 1977, the substantive provisions of this article were contained in article 1 of this title.

ARTICLE 2 Cross references: For the "Uniform Act for Out-of-State Parolee Supervision", see part 3 of article 60 of title 24.

Editor's note: (1) Section 8 of chapter 74, Session Laws of Colorado 2000, provides that the act enacting subsection (5.7) applies to offenses committed on or after July 1, 2000.

(2) Section 25 of chapter 232, Session Laws of Colorado 2000, provides that the act amending subsection (5)(c) applies to orders for convictions entered on or after September 1, 2000, and delinquencies of orders existing on or after September 1, 2000. The act was passed without a safety clause. For an explanation concerning the effective date, see page vii of this volume.

(3) Subsection (3)(a) was amended in a 2000 act that was passed without a safety clause. The act establishes an effective date of July 1, 2001, for this provision. For further explanation concerning the effective date, see page vii of this volume.

Cross references: (1) For collection of restitution see § 16-11-101.5.

(2) For the legislative declaration contained in the 1994 act amending subsections (5.5)(b)(II) and (5.5)(c), see section 1 of chapter 345, Session Laws of Colorado 1994.

I. General Consideration.
II. Power to Grant Parole.
III. Power to Revoke Parole.

I.GENERAL CONSIDERATION.

Am. Jur.2d. See 59 Am. Jur.2d, Pardon and Parole, § § 78-80.

C.J.S. See 67A C.J.S., Pardon and Parole, § § 41-53, 55, 61, 63-79.

Law reviews. For article, "One Year Review of Criminal Law and Procedure", see 39 Dicta 81 (1962).

Annotator's note. Since § 17-2-201 is similar to § 17-1-201 as it existed prior to the 1977 repeal and reenactment of this title, relevant cases construing that provision have been included in the annotations to this section.

Section 16-13-101 does not violate the constitution. Even though a person sentenced to life in prisonment may be eligible for parole before a person sentenced for a term of not less than 25 years and not more than 50 years under § 16-13-101, it does not violate the equal protection clause because the statutory scheme gives the parole board discretionary power to grant parole on the basis of factors other than the length of a prisoner's sentence and this is reasonably related to a legitimate government interest. People v. Alexander, 797 P.2d 1250 (Colo. 1990).

While obtaining and analyzing the
DNA or saliva of an inmate convicted of a sex offense is a search and seizure implicating fourth amendment concerns, it is a reasonable search and seizure in light of an inmate's diminished privacy rights; the minimal intrusion of saliva and blood tests; and the legitimate government interest in the investigation and prosecution of unsolved and future criminal acts by the use of DNA in a manner not significantly different from the use of fingerprints. Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996).

Since
DNA samples are not testimonial in nature, requiring such samples from inmates does not amount to compulsory self-incrimination under the fifth amendment. Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996).

Taking
DNA samples only from inmates convicted of sex offenses does not deprive those inmates of the equal protection of the laws since a rational relationship exists between the government's decision to classify inmates as convicted sex offenders and the government's stated objective to investigate and prosecute unsolved and future sex crimes. Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996).

Subsection (5)(g), by its plain language, applies only to those offenders who are convicted of a sexual offense after the date the statute took effect (May 29, 1988) and who subsequently are eligible for parole. Thus the statute was not retrospectively applied to defendant who was convicted July 28, 1988, as a sex offender. Jamison v. People, 988 P.2d 177 (Colo. App. 1999).

As applied to the defendant, the 1994 amendment to subsection (4)(a) that decreased the frequency of parole suitability hearings for certain classes of prisoners did not violate the ex post facto clause of the United State Constitution. Raymer v. Enright, 113 F.3d 172 (10th Cir. 1997).

Review of acts of parole board. Acts of the parole board being definitely of grace are not such a function as is reviewable by the courts by certiorari, habeas corpus or mandamus. Berry v. State Bd. of Parole, 148 Colo. 547, 367 P.2d 338 (1961), cert. denied, 370 U.S. 927, 82 S. Ct. 1569, 8 L. Ed.2d 507 (1962).

A person denied parole can seek judicial review only as provided by Rule 106(a)(2), C.R.C.P. In re Question Concerning State Judicial Review, 199 Colo. 463, 610 P.2d 1340 (1980).

It is only when the Colorado state board of parole has failed to exercise its statutory duties that the courts of Colorado have the power to review the board's actions. In re Question Concerning State Judicial Review, 199 Colo. 463, 610 P.2d 1340 (1980).

Absent specific criteria which mandate release. The Colorado statutory scheme does not create a constitutionally protected entitlement to parole. Thompson v. Riveland, 714 P.2d 1338 (Colo. App. 1986); Andretti v. Johnson, 779 P.2d 382 (Colo. 1989).

Subsection (5)(a) mandates that parole is discretionary for sexual offenders. Grenemyer v. Gunter, 770 F. Supp. 1432 (D. Colo. 1991).

The mandatory period of parole for a person convicted of a sexual offense committed between July 1, 1993, and July 1, 1996, is five years pursuant to § 18-1-105 (1)(a)(V), notwithstanding the provisions of subsection (5)(a) of this section. People v. Martin, 987 P.2d 919 (Colo. App. 1999).

Where plaintiff does not dispute that parole in Colorado is discretionary, subsection (5)(g) does not implicate any liberty interest protected by due process by conditioning parole on an inmate's submission of
DNA samples. Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996).

Immunity of state officials from civil liability. Federal officials are immune from any form of civil liability arising out of the authorized performance of official judgment or discretionary functions. Allegations of malice, while sufficient to raise a cause of action in those few jurisdictions recognizing only a qualified privilege, do not defeat the absolute liability recognized by the great weight of federal decisions. Advancing the effective administration of state government is a no less important policy goal than securing fearless federal decision-making. Belveal v. Bray, 253 F. Supp. 606 (D. Colo. 1966).

Although it becomes the duty of the parole board to provide, as a condition of parole, that offender make restitution to the victim or victim's immediate family, it is error for court to require that defendant pay restitution to the police of cost of extradition. The proper way to effectuate this result is for court to enter judgment in favor of state of Colorado for amount of costs of prosecution under § 16-1-501. People v. Lemons, 824 P.2d 56 (Colo. App. 1991).

Position as officer of state parole board not fundamental right. An officer of the state parole board has no property or vested interest in the public office and procedural protections of due process do not apply. Wilkerson v. State of Colorado, 830 P.2d 1121 (Colo. App. 1992).

While the trial court is authorized to fix the amount of restitution owing by the defendant, the manner and time of payment of restitution is exclusively within the jurisdiction of the parole board. People v. Strock, 931 P.2d 538 (Colo. App. 1996).

Under subsection (5)(c)(I) the term "victim" includes insurers and other parties who have suffered a loss because of a contractual relationship with the immediate victim. People v. Rivera, 968 P.2d 1061 (Colo. App. 1997).

Applied in Sorenson v. Zapien, 455 F. Supp. 1207 (D. Colo. 1978); Turman v. Buckallew, 784 P.2d 774 (Colo. 1989); People v. Apodaca, --- P.2d --- (Colo. App. 1999).

II.POWER TO GRANT PAROLE.

Parole is a mere matter of grace, favor, or privilege and is not a matter of right. Berry v. State Bd. of Parole, 148 Colo. 547, 367 P.2d 338 (1961), cert. denied, 370 U.S. 927, 82 S. Ct. 1569, 8 L. Ed.2d 507 (1962); Ferchaw v. Tinsley, 234 F. Supp, 922 (D. Colo. 1964); Folks v. Patterson, 159 Colo. 403, 412 P.2d 214 (1966).

Parole is a privilege, and no prisoner is entitled to it as a matter of right. Silva v. People, 158 Colo. 326, 407 P.2d 38 (1965).

Parole is a privilege under Colorado law. Belveal v. Bray, 253 F. Supp. 606 (D. Colo. 1966).

It is exercise of discipline by state. Acts authorizing the parole of convicts are an exercise of the power of discipline possessed by the state, implemented through the general assembly. Silva v. People, 158 Colo. 326, 407 P.2d 38 (1965).

Imposition of mandatory term of parole not within court's jurisdiction, but is within the exclusive province of the parole board. People v. Howard, 886 P.2d 296 (Colo. App. 1994).

The parole board has absolute discretion in the granting or denial of parole. The determinations involved in granting parole depend exclusively on the judgment and discretion of the board. Wilkerson v. Patterson, 174 Colo. 264, 483 P.2d 365 (1971).

The ultimate decision as to the granting or denial of parole is entrusted to the state parole board. Ferchaw v. Tinsley, 234 F. Supp. 922 (D. Colo. 1964).

The decision of the Colorado state board of parole to grant or deny parole is clearly discretionary since parole is a privilege, and no prisoner is entitled to it as a matter of right. In re Question Concerning State Judicial Review, 199 Colo. 463, 610 P.2d 1340 (1980).

But it must act within scope of delegated authority. The parole board is authorized to act only in specified ways. Absolute quasi-judicial immunity to acts not permitted by law does not serve the purpose of more efficient government. Officials who act without the scope of their delegated authority must, at the least, proceed at their own risk. Belveal v. Bray, 253 F. Supp. 606 (D. Colo. 1966).

An inmate has a substantial interest in knowing the reason or reasons from the board for denial of parole. Johnson v. Heggie, 362 F. Supp. 851 (D. Colo. 1973).

And board must give written reasons. Notwithstanding any other policy to the contrary, the board must, by the very terms and conditions of its own rules and regulations, give written reasons for denial or deferral of parole to the inmate concerned. Johnson v. Heggie, 362 F. Supp. 851 (D. Colo. 1973).

The general assembly did not intend to provide a mandatory period of parole. Wilkerson v. Patterson, 174 Colo. 264, 483 P.2d 365 (1971).

Board must reconsider application yearly after denial. The parole board is explicitly not required to grant an application, but when it does not grant a parole, it must reconsider the application each succeeding year until the prisoner is discharged pursuant to law, that is, until he has fully served the maximum term of his sentence less time allowed for good behavior, if any. Wilkerson v. Patterson, 174 Colo. 264, 483 P.2d 365 (1971).

Habeas corpus in the federal district court is not available to secure relief from the decisions of the parole board as to the grant or denial of parole. Ferchaw v. Tinsley, 234 F. Supp. 922 (D. Colo. 1964).

And denial of parole raises no federal question of due process. The action of the parole board denying petitioner parole and requiring him to serve the maximum sentence originally imposed by the sentencing court raises no federal question of violation of due process or equal protection. Ferchaw v. Tinsley, 234 F. Supp. 922 (D. Colo. 1964).

Restitution as a condition of parole. Sentence which ordered defendant to pay restitution as a condition of parole after serving time in prison is consistent with the applicable statutory scheme governing parole and restitution. People v. Martinez, 734 P.2d 650 (Colo. App. 1987).

The court's duty to fix the amount of restitution is not confined to sentences to probation but applies equally to sentences to imprisonment. People v. Johnson, 780 P.2d 504 (Colo. 1989).

A codefendant is jointly responsible for restitution when he is also a complicitor in the crime. People v. Fichtner, 869 P.2d 539 (Colo. 1994).

Codefendants were participants and complicitors in the same criminal acts, therefore, each is responsible for the damage he caused and also for the damage caused by the other. People v. Fichtner, 869 P.2d 539 (Colo. 1994).

Where the parole board fails to issue a warrant for the arrest of a parolee, and the period of parole expires, law enforcement agencies have no authority to arrest the parolee, and the good faith exception and the fellow officer rule do not apply. People v. Fields, 785 P.2d 611 (Colo. 1990).

Subsection (5)(a) plainly and unambiguously provides that all habitual criminals sentenced pursuant to § 16-13-101 are subject to discretionary parole, regardless of when their current offenses were committed. People v. Marquez, 983 P.2d 159 (Colo. App. 1999).

Under subsection (5)(a), parole for inmates convicted of sexual offenses under § 16-13-202 (5) was discretionary, not mandatory. Lustgarden v. Kautzky, 811 P.2d 1098 (Colo. 1991); Lustgarden v. Gunter, 779 F. Supp. 500 (D. Colo. 1991); Lustgarden v. Gunter, 966 F.2d 552 (10th Cir. 1992), cert. denied, 506 U.S. 1008, 113 S. Ct. 624, 121 L.Ed.2d 556 (1992); Jackson v. Zavaras, 963 P.2d 1118 (Colo. App. 1998).

Where defendant was convicted of both a sexual offense and attempted murder, and received equal and concurrent sentences for each crime, parole was discretionary pursuant to subsection (5)(a). Mahn v. Gunter, 978 F.2d 599 (10th Cir. 1992).

Retroactive application of the parole board's reinterpretation of subsection (5)(a), where the reinterpretation of the ambiguous statutory language was foreseeable, did not result in a violation of the ex post facto clause or the due process requirements. Lustgarden v. Gunter, 779 F. Supp. 500 (D. Colo. 1991); Lustgarden v. Gunter, 966 F.2d 552 (10th Cir. 1992), cert. denied, 506 U.S. 1008, 113 S. Ct. 624, 121 L.Ed.2d 556 (1992).

Because subsection (5)(a) leaves it to the parole board's discretion whether to grant parole before a sex offender completes his sentence, petitioner's unilateral belief that good-time credits would result in his early release did not give rise to a constitutionally protected interest. Lustgarden v. Gunter, 779 F. Supp. 500 (D. Colo. 1991); Lustgarden v. Gunter, 966 F.2d 552 (10th Cir. 1992), cert. denied, 506 U.S. 1008, 113 S. Ct. 624, 121 L.Ed.2d 556 (1992).

Consideration of application for parole is matter entrusted solely to the discretion of the parole board for parolee convicted of sexual offenses. White v. People, 866 P.2d 1371 (Colo. 1994).

Court may correct erroneous sentence of person convicted of unlawful sexual offense from one-year probation to the period set forth in subsection (5)(a). People v. Reynolds, 907 P.2d 670 (Colo. App. 1995).

Court may correct the mittimus where the trial court neglected to specify that its sentence included a mandatory period of parole. People v. Mayes, 981 P.2d 1106 (Colo. App. 1999).

Parole decision is subtle and dependent on an amalgam of elements some of which are factual and many of which are purely subjective appraisals by the parole board members based upon their experience. White v. People, 866 P.2d 1371 (Colo. 1994).

Although parole agreement is anticipated, it is not a condition to grant of parole but a condition to release on parole. Regulations do not suggest that grant of parole not effective until prisoner actually released from custody. Prisoner granted parole to a county detainer and serving consecutive sentence on another conviction made prima facie case for writ of habeas corpus relief when he alleged that parole had not been suspended or rescinded. Cardiel v. Brittian, 833 P.2d 748 (Colo. 1992) (decided prior to enactment of § 17-2-201 (5)(f)(I)).

III.POWER TO REVOKE PAROLE.

Law reviews. For article, "Due Process, Equal Protection and State Parole Revocation Proceedings", see 42 U. Colo. L. Rev. 197 (1970).

The decision to revoke is discretionary, and the degree to which personal factors dictate a positive disposition is not susceptible to legal analysis. Martinez v. Patterson, 429 F.2d 844 (10th Cir. 1970), cert. denied, 402 U.S. 934, 91 S. Ct. 1528, 28 L. Ed.2d 868 (1971).

Rules of board provide adequate opportunity to be heard. The rules and regulations of the state board of parole providing that where the parolee has been returned to custody he shall be brought before the board for interview, that he shall be informed of the reason for the suspension and of grounds asserted for revocation, and shall be given an opportunity to be heard in regard thereto, satisfy the requirements of law in that they adequately provide for an inquiry by the board together with an opportunity for the parolee to be heard with respect to the alleged violations. Hutchison v. Patterson, 267 F. Supp. 433 (D. Colo. 1967).

Probation and parole revocation distinguished. Probation revocation proceedings involving deferred sentencing are quite distinct from parole revocation proceedings. The Colorado provisions on probation, section 16-11-201 et seq., do not provide probationers more in substance than what is accorded parolees. Martinez v. Patterson, 429 F.2d 844 (10th Cir. 1970), cert. denied, 402 U.S. 934, 91 S. Ct. 1528, 28 L. Ed.2d 868 (1971).

Acts of parole board in revoking parole were not subject to review by the judiciary, be it through the medium of certiorari, habeas corpus or mandamus. Folks v. Patterson, 159 Colo. 403, 412 P.2d 214 (1966).

Colorado affords no judicial review of the acts of the state board of parole in conducting revocation proceedings and therefore no state remedy is available to petitioner upon his claim that his present confinement is unlawfully premised on a parole revocation hearing at which he was denied due process. Green v. Patterson, 370 F.2d 560 (10th Cir. 1966).

Federal court found no prejudice where parolees did not deny violations. Appellants' allegations do not at any place deny that they violated the conditions of their respective paroles. Appellants easily could have made a record in this regard and in the absence of that the court cannot conclude that any appellant was prejudiced in the proceedings before the parole board. In view of the nature of the decision to be made in parole revocation proceedings, the presumption of correctness accorded to the proceedings of parole boards, and limited review of such decisions for abuse of discretion, the court cannot conclude that the parole revocation proceedings accorded each appellant lacked inherent fairness. Martinez v. Patterson, 429 F.2d 844 (10th Cir. 1970), cert. denied, 402 U.S. 934, 91 S. Ct. 1528, 28 L. Ed.2d 868 (1971).

TITLE 54. CRIMINAL PROCEDURE
CHAPTER 961. TRIAL AND PROCEEDINGS AFTER CONVICTION
PART IIA. HIV TESTING AND
DNA ANALYSIS OF SEXUAL OFFENDERS

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Conn. Gen. Stat. § 54-102g (1999)
STATUS: CONSULT SLIP LAWS CITED BELOW FOR RECENT CHANGES TO THIS DOCUMENT
LEXSEE 1999 Ct. ALS 183 -- See section 11.
LEXSEE 1999 Ct. ALS 218 -- See section 10.

Sec. 54-102g. Blood sample required from certain sexual offenders for
DNA analysis.

(a) Any person who (1) is convicted of a violation of section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b on or after October 1, 1994, and is sentenced to the custody of the Commissioner of Correction or (2) has been convicted of a violation of section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b and on October 1, 1994, is in the custody of the Commissioner of Correction shall, prior to release from such custody, have a sample of his blood taken for
DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person.

(b) Any person convicted of a violation of section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b on or after October 1, 1994, who is not sentenced to a term of confinement shall, as a condition of such sentence, have a sample of his blood taken for
DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person.

(c) Any person who is found not guilty by reason of mental disease or defect pursuant to section 53a-13 of any violation specified in subsection (a) or (b) of this section on or after October 1, 1994, shall, prior to discharge from custody in accordance with subsection (e) of section 17a-582 or subsection (g) of section 17a-593, have a sample of his blood taken for
DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person.

(d) The analysis shall be performed by the State Police Forensic Science Laboratory. The identification characteristics of the profile resulting from the
DNA analysis shall be stored and maintained by the laboratory in a DNA data bank and shall be made available only as provided in section 54-102j.

HISTORY: (P.A. 94-246, S. 1; P.A. 98-111, S. 10.)

NOTES:

P.A. 98-111 added new Subsec. (c) requiring any person found not guilty by reason of mental disease or defect of any violation specified in Subsec. (a) or (b) on or after October 1, 1994 to have a blood sample taken for
DNA analysis prior to discharge from custody, redesignating former Subsec. (c) as Subsec. (d).

TITLE NOTE(S):

*Statutory rules of court practice and procedure do not violate constitutional separation of powers (dissent). 161 Conn. 501.

Cited. 30 Conn. App. 381, 392.

CHAPTER NOTE(S):

*In a criminal matter, unless the state makes out a prima facie case of guilt, no unfavorable inference may be drawn from the failure of the accused to testify. 147 Conn. 502. The fact that one or more persons jointly charged with the commission of a crime pleaded guilty is not admissible, on the trial of another person so charged, to establish that the crime was committed. A plea of guilty is, in effect, a confession of guilt which, having been made by one of those charged with the crime, can be no more than hearsay as to another who is so charged. The state must prove the whole case against any accused. Sequestration of witnesses is in discretion of trial court. Request must be seasonably made, must be specific and supported by sound reasons, and it must appear probable that, if witnesses were to hear one another's testimony, they would attempt falsely to give corroborating testimony. If these conditions are met, a denial of the motion could constitute an abuse of discretion. It is within the discretion of the court to grant or deny a defendant the right to inspect statements of the state's witnesses in the possession of the state's attorney. 150 Conn. 195.

The corpus delicti, that is, that the crime charged has been committed by someone, cannot be established by the extrajudicial confession of the defendant unsupported by corroborative evidence. 22 Conn. Supp. 385; 23 Conn. Supp. 420. In a criminal case the accused cannot compel the prosecution to produce documents which he himself has made. Furthermore, facts sought to be disclosed must be shown to be exclusively within the knowledge of the state. 23 Conn. Supp. 41. Proof of guilt must exclude not every possible, but every reasonable, supposition of the innocence of the accused. 23 Conn. Supp. 299. In criminal case the state may rest its case upon evidence sufficient to make out prima facie case. A prima facie case is made out when the evidence indicates to a reasonable person such a strong probability of guilt that a denial or explanation by the defendant is reasonably called for. When the state has made out a prima facie case of guilt, an adverse inference may be drawn from the failure of defendant to testify in his own behalf. 23 Conn. Supp. 412. Information disclosed to a prosecuting attorney to enable him to perform the duties of his office is privileged on grounds of public policy, and the adverse party has no right to demand its production. 23 Conn. Supp. 459. If accused has reason to believe witness under examination had made prior statement which was contradictory to his testimony, accused may request statement to be produced for examination by court. Further use of such statement rests in discretion of court. 24 Conn. Supp. 377.



TITLE 54. CRIMINAL PROCEDURE
CHAPTER 961. TRIAL AND PROCEEDINGS AFTER CONVICTION
PART IIA. HIV TESTING AND
DNA ANALYSIS OF SEXUAL OFFENDERS

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Conn. Gen. Stat. § 54-102h (1999)
STATUS: CONSULT SLIP LAWS CITED BELOW FOR RECENT CHANGES TO THIS DOCUMENT
LEXSEE 1999 Ct. ALS 218 -- See section 11.

Sec. 54-102h. Procedure for withdrawal of blood sample for
DNA analysis.

(a) Each sample required pursuant to section 54-102g from persons who are to be incarcerated shall be withdrawn at the receiving unit or at such other place as is designated by the Department of Correction. The required samples from persons who are not sentenced to a term of confinement shall be withdrawn at a time and place specified by the sentencing court. Only a person licensed to practice medicine and surgery in this state, a qualified laboratory technician, a registered nurse or a phlebotomist shall withdraw any sample to be submitted to analysis. No civil liability shall attach to any person authorized to withdraw blood as provided in this section as a result of the act of withdrawing blood from any person submitting thereto, if the blood was withdrawn according to recognized medical procedures, provided no person shall be relieved from liability for negligence in the withdrawing of any blood sample.

(b) Chemically clean sterile disposable needles and vacuum draw tubes shall be used for all samples. The tube shall be sealed and labeled with the subject's name, social security number, date of birth, race and gender, the name of the person collecting the sample, and the date and place of collection. The tubes shall be secured to prevent tampering with the contents. The steps set forth in this section relating to the taking, handling, identification and disposition of blood samples are procedural and not substantive. Substantial compliance therewith shall be deemed to be sufficient. The samples shall be transported to the State Police Forensic Science Laboratory not more than fifteen days following withdrawal and shall be analyzed and stored in the
DNA data bank in accordance with sections 54-102i and 54-102j.

HISTORY: (P.A. 94-246, S. 2.)

TITLE NOTE(S):

*Statutory rules of court practice and procedure do not violate constitutional separation of powers (dissent). 161 Conn. 501.

Cited. 30 Conn. App. 381, 392.

CHAPTER NOTE(S):

*In a criminal matter, unless the state makes out a prima facie case of guilt, no unfavorable inference may be drawn from the failure of the accused to testify. 147 Conn. 502. The fact that one or more persons jointly charged with the commission of a crime pleaded guilty is not admissible, on the trial of another person so charged, to establish that the crime was committed. A plea of guilty is, in effect, a confession of guilt which, having been made by one of those charged with the crime, can be no more than hearsay as to another who is so charged. The state must prove the whole case against any accused. Sequestration of witnesses is in discretion of trial court. Request must be seasonably made, must be specific and supported by sound reasons, and it must appear probable that, if witnesses were to hear one another's testimony, they would attempt falsely to give corroborating testimony. If these conditions are met, a denial of the motion could constitute an abuse of discretion. It is within the discretion of the court to grant or deny a defendant the right to inspect statements of the state's witnesses in the possession of the state's attorney. 150 Conn. 195.

The corpus delicti, that is, that the crime charged has been committed by someone, cannot be established by the extrajudicial confession of the defendant unsupported by corroborative evidence. 22 Conn. Supp. 385; 23 Conn. Supp. 420. In a criminal case the accused cannot compel the prosecution to produce documents which he himself has made. Furthermore, facts sought to be disclosed must be shown to be exclusively within the knowledge of the state. 23 Conn. Supp. 41. Proof of guilt must exclude not every possible, but every reasonable, supposition of the innocence of the accused. 23 Conn. Supp. 299. In criminal case the state may rest its case upon evidence sufficient to make out prima facie case. A prima facie case is made out when the evidence indicates to a reasonable person such a strong probability of guilt that a denial or explanation by the defendant is reasonably called for. When the state has made out a prima facie case of guilt, an adverse inference may be drawn from the failure of defendant to testify in his own behalf. 23 Conn. Supp. 412. Information disclosed to a prosecuting attorney to enable him to perform the duties of his office is privileged on grounds of public policy, and the adverse party has no right to demand its production. 23 Conn. Supp. 459. If accused has reason to believe witness under examination had made prior statement which was contradictory to his testimony, accused may request statement to be produced for examination by court. Further use of such statement rests in discretion of court. 24 Conn. Supp. 377.



TITLE 54. CRIMINAL PROCEDURE
CHAPTER 961. TRIAL AND PROCEEDINGS AFTER CONVICTION
PART IIA. HIV TESTING AND
DNA ANALYSIS OF SEXUAL OFFENDERS

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Conn. Gen. Stat. § 54-102i (1999)
STATUS: CONSULT SLIP LAWS CITED BELOW FOR RECENT CHANGES TO THIS DOCUMENT
LEXSEE 1999 Ct. ALS 218 -- See section 12.

Sec. 54-102i. Procedure for conducting
DNA analysis of blood sample.

(a) Whether or not the results of an analysis are to be included in the data bank, the State Police Forensic Science Laboratory shall conduct the
DNA analysis in accordance with procedures adopted by the laboratory to determine identification characteristics specific to the individual whose sample is being analyzed. Such procedures shall conform to nationally recognized and accepted standards for DNA analysis. The director or his designee shall complete and maintain on file a form indicating the name of the person whose sample is to be analyzed, the date and by whom the blood sample was received and examined, and a statement that the seal on the tube had not been broken or otherwise tampered with. The remainder of a blood sample submitted for analysis and inclusion in the data bank pursuant to section 54-102g may be divided, labeled as provided for the original sample, and securely stored by the laboratory in accordance with specific procedures set forth in regulations adopted by the Department of Public Safety in accordance with the provisions of chapter 54 to ensure the integrity and confidentiality of the samples. All or part of the remainder of that sample may be used only (1) to create a statistical data base provided no identifying information on the individual whose sample is being analyzed is included or (2) for retesting by the laboratory to validate or update the original analysis.

(b) The laboratory shall initiate a
DNA testing process not later than forty-five days after the receipt of a blood sample that has been submitted for analysis. A report of the results of a DNA analysis conducted by the laboratory as authorized, including the profile and identifying information, shall be made and maintained at the laboratory. A certificate and the results of the analysis shall be admissible in any court as evidence of the facts therein stated. Except as specifically provided in this section and section 54-102j, the results of the analysis shall be securely stored and shall remain confidential.

HISTORY: (P.A. 94-246, S. 3; P.A. 96-2.)

NOTES:

P.A. 96-2 amended Subsec. (b) to provide for the initiation of a
DNA testing process rather than conducting a DNA analysis.

TITLE NOTE(S):

*Statutory rules of court practice and procedure do not violate constitutional separation of powers (dissent). 161 Conn. 501.

Cited. 30 Conn. App. 381, 392.

CHAPTER NOTE(S):

*In a criminal matter, unless the state makes out a prima facie case of guilt, no unfavorable inference may be drawn from the failure of the accused to testify. 147 Conn. 502. The fact that one or more persons jointly charged with the commission of a crime pleaded guilty is not admissible, on the trial of another person so charged, to establish that the crime was committed. A plea of guilty is, in effect, a confession of guilt which, having been made by one of those charged with the crime, can be no more than hearsay as to another who is so charged. The state must prove the whole case against any accused. Sequestration of witnesses is in discretion of trial court. Request must be seasonably made, must be specific and supported by sound reasons, and it must appear probable that, if witnesses were to hear one another's testimony, they would attempt falsely to give corroborating testimony. If these conditions are met, a denial of the motion could constitute an abuse of discretion. It is within the discretion of the court to grant or deny a defendant the right to inspect statements of the state's witnesses in the possession of the state's attorney. 150 Conn. 195.

The corpus delicti, that is, that the crime charged has been committed by someone, cannot be established by the extrajudicial confession of the defendant unsupported by corroborative evidence. 22 Conn. Supp. 385; 23 Conn. Supp. 420. In a criminal case the accused cannot compel the prosecution to produce documents which he himself has made. Furthermore, facts sought to be disclosed must be shown to be exclusively within the knowledge of the state. 23 Conn. Supp. 41. Proof of guilt must exclude not every possible, but every reasonable, supposition of the innocence of the accused. 23 Conn. Supp. 299. In criminal case the state may rest its case upon evidence sufficient to make out prima facie case. A prima facie case is made out when the evidence indicates to a reasonable person such a strong probability of guilt that a denial or explanation by the defendant is reasonably called for. When the state has made out a prima facie case of guilt, an adverse inference may be drawn from the failure of defendant to testify in his own behalf. 23 Conn. Supp. 412. Information disclosed to a prosecuting attorney to enable him to perform the duties of his office is privileged on grounds of public policy, and the adverse party has no right to demand its production. 23 Conn. Supp. 459. If accused has reason to believe witness under examination had made prior statement which was contradictory to his testimony, accused may request statement to be produced for examination by court. Further use of such statement rests in discretion of court. 24 Conn. Supp. 377.

TITLE 54. CRIMINAL PROCEDURE
CHAPTER 961. TRIAL AND PROCEEDINGS AFTER CONVICTION
PART IIA. HIV TESTING AND
DNA ANALYSIS OF SEXUAL OFFENDERS

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Conn. Gen. Stat. § 54-102j (1999)
STATUS: CONSULT SLIP LAWS CITED BELOW FOR RECENT CHANGES TO THIS DOCUMENT
LEXSEE 1999 Ct. ALS 218 -- See section 13.

Sec. 54-102j. Dissemination of information in
DNA data bank.

(a) It shall be the duty of the State Police Forensic Science Laboratory to receive blood samples and to analyze, classify and file the results of
DNA identification characteristics profiles of blood samples submitted pursuant to section 54-102g and to make such information available as provided in this section. The results of an analysis and comparison of the identification characteristics from two or more blood or other biological samples shall be made available directly to federal, state and local law enforcement officers upon request made in furtherance of an official investigation of any criminal offense. A request may be made by personal contact, mail or electronic means. The name of the person making the request and the purpose for which the information is requested shall be maintained on file with the laboratory.

(b) Upon his request, a copy of the request for a search shall be furnished to any person identified and charged with an offense as the result of a search of information in the data bank. Only when a sample or
DNA profile supplied by the person making the request satisfactorily matches a profile in the data bank shall the existence of data in the data bank be confirmed or identifying information from the data bank be disseminated.

(c) The Department of Public Safety shall adopt regulations in accordance with the provisions of chapter 54 governing (1) the methods of obtaining information from the data bank in accordance with this section and (2) procedures for verification of the identity and authority of the person making the request. The department shall specify the positions in that agency which require regular access to the data bank and samples submitted as a necessary function of the job.

(d) The State Police Forensic Science Laboratory shall create a separate statistical data base comprised of
DNA profiles of blood samples of persons whose identity is unknown. Nothing in this section or section 54-102k shall prohibit the forensic science laboratory from sharing or otherwise disseminating the information in the statistical data base with law enforcement or criminal justice agencies within or without the state.

(e) The forensic science laboratory may charge a reasonable fee to search and provide a comparative analysis of
DNA profiles in the data bank to any authorized law enforcement agency outside of the state.

HISTORY: (P.A. 94-246, S. 4; P.A. 98-2.)

NOTES:

P.A. 98-2 added "or other biological samples" to Subsec. (a).

TITLE NOTE(S):

*Statutory rules of court practice and procedure do not violate constitutional separation of powers (dissent). 161 Conn. 501.

Cited. 30 Conn. App. 381, 392.

CHAPTER NOTE(S):

*In a criminal matter, unless the state makes out a prima facie case of guilt, no unfavorable inference may be drawn from the failure of the accused to testify. 147 Conn. 502. The fact that one or more persons jointly charged with the commission of a crime pleaded guilty is not admissible, on the trial of another person so charged, to establish that the crime was committed. A plea of guilty is, in effect, a confession of guilt which, having been made by one of those charged with the crime, can be no more than hearsay as to another who is so charged. The state must prove the whole case against any accused. Sequestration of witnesses is in discretion of trial court. Request must be seasonably made, must be specific and supported by sound reasons, and it must appear probable that, if witnesses were to hear one another's testimony, they would attempt falsely to give corroborating testimony. If these conditions are met, a denial of the motion could constitute an abuse of discretion. It is within the discretion of the court to grant or deny a defendant the right to inspect statements of the state's witnesses in the possession of the state's attorney. 150 Conn. 195.

The corpus delicti, that is, that the crime charged has been committed by someone, cannot be established by the extrajudicial confession of the defendant unsupported by corroborative evidence. 22 Conn. Supp. 385; 23 Conn. Supp. 420. In a criminal case the accused cannot compel the prosecution to produce documents which he himself has made. Furthermore, facts sought to be disclosed must be shown to be exclusively within the knowledge of the state. 23 Conn. Supp. 41. Proof of guilt must exclude not every possible, but every reasonable, supposition of the innocence of the accused. 23 Conn. Supp. 299. In criminal case the state may rest its case upon evidence sufficient to make out prima facie case. A prima facie case is made out when the evidence indicates to a reasonable person such a strong probability of guilt that a denial or explanation by the defendant is reasonably called for. When the state has made out a prima facie case of guilt, an adverse inference may be drawn from the failure of defendant to testify in his own behalf. 23 Conn. Supp. 412. Information disclosed to a prosecuting attorney to enable him to perform the duties of his office is privileged on grounds of public policy, and the adverse party has no right to demand its production. 23 Conn. Supp. 459. If accused has reason to believe witness under examination had made prior statement which was contradictory to his testimony, accused may request statement to be produced for examination by court. Further use of such statement rests in discretion of court. 24 Conn. Supp. 377.


TITLE 54. CRIMINAL PROCEDURE
CHAPTER 961. TRIAL AND PROCEEDINGS AFTER CONVICTION
PART IIA. HIV TESTING AND
DNA ANALYSIS OF SEXUAL OFFENDERS

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Conn. Gen. Stat. § 54-102l (1999)
Sec. 54-102l. Expungement of
DNA data bank records upon reversal and dismissal of conviction.

A person whose
DNA profile has been included in the data bank pursuant to sections 54-102g to 54-102k, inclusive, may request expungement on the grounds that the criminal conviction on which the authority for including his DNA profile was based has been reversed and the case dismissed. The State Police Forensic Science Laboratory shall purge all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person upon receipt of (1) a written request for expungement pursuant to this section and (2) a certified copy of the court order reversing and dismissing the conviction.

HISTORY: (P.A. 94-246, S. 6.)

TITLE NOTE(S):

*Statutory rules of court practice and procedure do not violate constitutional separation of powers (dissent). 161 Conn. 501.

Cited. 30 Conn. App. 381, 392.

CHAPTER NOTE(S):

*In a criminal matter, unless the state makes out a prima facie case of guilt, no unfavorable inference may be drawn from the failure of the accused to testify. 147 Conn. 502. The fact that one or more persons jointly charged with the commission of a crime pleaded guilty is not admissible, on the trial of another person so charged, to establish that the crime was committed. A plea of guilty is, in effect, a confession of guilt which, having been made by one of those charged with the crime, can be no more than hearsay as to another who is so charged. The state must prove the whole case against any accused. Sequestration of witnesses is in discretion of trial court. Request must be seasonably made, must be specific and supported by sound reasons, and it must appear probable that, if witnesses were to hear one another's testimony, they would attempt falsely to give corroborating testimony. If these conditions are met, a denial of the motion could constitute an abuse of discretion. It is within the discretion of the court to grant or deny a defendant the right to inspect statements of the state's witnesses in the possession of the state's attorney. 150 Conn. 195.

The corpus delicti, that is, that the crime charged has been committed by someone, cannot be established by the extrajudicial confession of the defendant unsupported by corroborative evidence. 22 Conn. Supp. 385; 23 Conn. Supp. 420. In a criminal case the accused cannot compel the prosecution to produce documents which he himself has made. Furthermore, facts sought to be disclosed must be shown to be exclusively within the knowledge of the state. 23 Conn. Supp. 41. Proof of guilt must exclude not every possible, but every reasonable, supposition of the innocence of the accused. 23 Conn. Supp. 299. In criminal case the state may rest its case upon evidence sufficient to make out prima facie case. A prima facie case is made out when the evidence indicates to a reasonable person such a strong probability of guilt that a denial or explanation by the defendant is reasonably called for. When the state has made out a prima facie case of guilt, an adverse inference may be drawn from the failure of defendant to testify in his own behalf. 23 Conn. Supp. 412. Information disclosed to a prosecuting attorney to enable him to perform the duties of his office is privileged on grounds of public policy, and the adverse party has no right to demand its production. 23 Conn. Supp. 459. If accused has reason to believe witness under examination had made prior statement which was contradictory to his testimony, accused may request statement to be produced for examination by court. Further use of such statement rests in discretion of court. 24 Conn. Supp. 377.


DELAWARE

TITLE 11. CRIMES AND CRIMINAL PROCEDURE
PART II. CRIMINAL PROCEDURE GENERALLY
CHAPTER 45. APPEAL; STAY OF EXECUTION; POSTCONVICTION REMEDY

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11 Del. C. § 4504 (2000)
§ 4504. Postconviction remedy


(a) Except at a time when direct appellate review is available, and subject to the time limitations set forth in this subsection, a person convicted of a crime may file in the court that entered the judgement of conviction a motion requesting the performance of forensic
DNA testing to demonstrate the person's actual innocence. Any such motion may not be filed more than 3 years after the judgement of conviction is final. The motion may be granted if:

(1) The testing is to be performed on evidence secured in relation to the trial which resulted in the conviction;

(2) The evidence was not previously subject to testing because the technology for testing was not available at the time of the trial;

(3) The movant presents a prima facie case that identity was an issue in the trial;

(4) The movant presents a prima facie case that the evidence to be tested has been subject to a chain of custody sufficient to establish that the evidence has not been substituted, tampered with, degraded, contaminated, altered or replaced in any material aspect;

(5) The requested testing has the scientific potential to produce new, noncumulative evidence materially relevant to the person's assertion of actual innocence; and

(6) The requested testing employs a scientific method which is generally accepted within the relevant scientific community, and which satisfies the pertinent Delaware Rules of Evidence concerning the admission of scientific testimony or evidence.

(b) Except at a time when direct appellate review is available, a person convicted of a crime who claims that
DNA evidence not available at trial establishes the petitioner's actual innocence may commence a proceeding to secure relief by filing a motion for a new trial in the court that entered the judgement of conviction. The court may grant a new trial if the person establishes by clear and convincing evidence that no reasonable trier of fact, considering the evidence presented at trial, evidence that was available at trial but was not presented or was excluded, and the evidence obtained pursuant to subsection (a) of this section would have convicted the person.

(c) The court shall impose reasonable conditions on the testing designed to protect the state's interests in the integrity of the evidence and the testing process.

(d) Any motion filed pursuant to this section shall be served upon the State. The State shall have an absolute right to appeal to an appellate court any order granting a motion for a new trial pursuant to this section.

(e) The cost of
DNA testing ordered under subsection (a) of this section shall be borne by the State or the applicant, as the court may order in the interests of justice, if it is shown that the applicant is not indigent and possesses the means to pay.

HISTORY: 72 Del. Laws, c. 320, § 3.

NOTES:
REVISOR'S NOTE. --Section 4 of 72 Del. Laws, c. 320, provides: "The time limits set forth in § 4504(a) of Title 11 as promulgated by § 3 of this act shall not apply to any motion filed pursuant to said subsection by any person whose judgement of conviction is final prior to September 1, 2000. Any motion filed pursuant to the provisions of § 4504(a) of Title 11 as promulgated by § 3 of this act by any person whose judgement of conviction is final prior to September 1, 2000, may not be filed after September 1, 2002."
Section 5 of 72 Del. Laws, c. 320, provides: "This act shall be effective on September 1, 2000."

USER NOTE: For more generally applicable notes, see notes under the first section of this heading, subchapter, chapter, part or title.

TITLE 29. STATE GOVERNMENT
PART IV. STATE AGENCIES AND OFFICES NOT CREATED BY CONSTITUTION
CHAPTER 47. MEDICAL EXAMINERS

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29 Del. C. § 4713 (2000)
§ 4713.
DNA analysis and data bank


(a) In any criminal proceeding,
DNA (deoxyribonucleic acid) testing shall be deemed to be a reliable scientific technique, and the evidence of a DNA profile comparison shall be admitted to prove or disprove the identity of any person. This section shall not otherwise limit the introduction of any relevant evidence bearing upon any question at issue before the court. The court shall, regardless of the results of the DNA analysis, if any, consider such other relevant evidence of the identity of the person as shall be admissible in evidence.

(b) Any person convicted on or after June 16, 1994, of any offense or attempted offense defined in subchapter II, subpart D or subchapter V of Chapter 5, Title 11 or who is in the custody of the Department of Correction after June 16, 1994, as a result of a conviction on one of the above offenses shall have a sample of blood taken by the Department of Correction for
DNA (deoxyribonucleic acid) law enforcement identification purposes and inclusion in law enforcement identification databases. Any person convicted on or after June 16, 1994, who is not sentenced to a term of confinement shall provide a blood sample as a condition of such sentence at a time and place specified by the sentencing court.

(c) The samples shall be obtained in a medically approved manner by a physician, registered nurse, licensed practical nurse, phlebotomist, medical technologist or other qualified medical personnel approved by the Chief Medical Examiner, and packaged and submitted in containers provided by the Chief Medical Examiner, Forensic Sciences Laboratory in accordance with administrative regulations promulgated by the Chief Medical Examiner. No civil liability shall attach to any person authorized to draw blood as provided by this section as a result of the act of drawing blood from any person, provided the blood was drawn according to generally accepted medical procedures.

(d) Any person who tampers or attempts to tamper with any sample of blood or the container collected pursuant to subsection (b) or (c) without lawful authority shall be guilty of a Class D felony.

(e) A centralized database of
DNA (deoxyribonucleic acid) identification records for convicted criminals shall be established in the Office of the Chief Medical Examiner, Forensic Science Laboratory. The established system shall be compatible with the procedures set forth in a national DNA identification index to ensure data exchange on a national level.

(f) The purpose of the centralized
DNA database is to assist federal, state and local criminal justice and law enforcement agencies within and outside the State in the identification, detection or exclusion of individuals who are subjects of the investigation or prosecution of sex-related crimes, violent crimes or other crimes and the identification of missing and unidentified persons.

(g) The Chief Medical Examiner and Forensic Sciences Laboratory shall receive, analyze and classify samples in compliance with subsections (b) and (c) of this section, and shall record the
DNA results in a centralized database for identification and statistical purposes. A report of the analysis certified by the Chief Medical Examiner shall be admissible in any court as evidence of the facts therein stated. Except as specifically provided in this section, the results of the analysis shall be securely stored and shall remain confidential.

(h) Records produced from the samples shall be used only for law enforcement purposes and shall be exempt from the provisions of the Freedom of Information Act.

(i) A person whose
DNA profile has been included in the data bank pursuant to this section may petition Superior Court for expungement on the grounds that the conviction on which the authority for including the DNA profile was based has been reversed or the case dismissed. The Office of Chief Medical Examiner, Forensic Science Laboratory shall expunge all identifiable information in the data bank pertaining to the person and destroy all samples from the person upon receipt of a certified court order.

(j) The Chief Medical Examiner and Forensic Sciences Laboratory shall promulgate administrative regulations necessary to carry out the provisions of the
DNA database identification system to include procedures for collection of samples of blood and the database system usage and integrity.

(k) Upon completion of the analysis required by this section, the Office of the Chief Medical Examiner, Forensic Science Laboratory shall forward to the State Bureau of Identification the name and other identifying information required by the State Bureau of Identification of each individual for whom a
DNA identification record is developed. Upon receipt of such information the State Bureau of Identification shall make a notation of the existence of such DNA identification record in the criminal history record information file for such individual maintained pursuant to Chapter 85 of Title 11. Such information shall be available to all requesting criminal justice agencies in the same manner and under the same conditions as all other criminal record information maintained by the State Bureau of Identification.

(l) Any person who disseminates, receives or otherwise uses or attempts to use information in the database, knowing that such dissemination, receipt or use is for a purpose other than authorized by law, shall be guilty of a Class A misdemeanor.

HISTORY: 69 Del. Laws, c. 249, § 1.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading, subchapter, chapter, part or title.



FLORIDA

TITLE XLVII CRIMINAL PROCEDURE AND CORRECTIONS
CHAPTER 947 PAROLE COMMISSION

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Fla. Stat. § 947.1405 (2000)
947.1405 Conditional release program.

(1) This section and s. 947.141 may be cited as the "Conditional Release Program Act."

(2) Any inmate who:

(a) Is convicted of a crime committed on or after October 1, 1988, and before January 1, 1994, and any inmate who is convicted of a crime committed on or after January 1, 1994, which crime is or was contained in category 1, category 2, category 3, or category 4 of Rule 3.701 and Rule 3.988, Florida Rules of Criminal Procedure (1993), and who has served at least one prior felony commitment at a state or federal correctional institution;

(b) Is sentenced as a habitual or violent habitual offender or a violent career criminal pursuant to s. 775.084; or

(c) Is found to be a sexual predator under s. 775.21 or former s. 775.23,

shall, upon reaching the tentative release date or provisional release date, whichever is earlier, as established by the Department of Corrections, be released under supervision subject to specified terms and conditions, including payment of the cost of supervision pursuant to s. 948.09. Such supervision shall be applicable to all sentences within the overall term of sentences if an inmate's overall term of sentences includes one or more n1 sentences that are eligible for conditional release supervision as provided herein. Effective July 1, 1994, and applicable for offenses committed on or after that date, the commission may require, as a condition of conditional release, that the releasee make payment of the debt due and owing to a county or municipal detention facility under s. 951.032 for medical care, treatment, hospitalization, or transportation received by the releasee while in that detention facility. The commission, in determining whether to order such repayment and the amount of such repayment, shall consider the amount of the debt, whether there was any fault of the institution for the medical expenses incurred, the financial resources of the releasee, the present and potential future financial needs and earning ability of the releasee, and dependents, and other appropriate factors. If an inmate has received a term of probation or community control supervision to be served after release from incarceration, the period of probation or community control must be substituted for the conditional release supervision. A panel of no fewer than two commissioners shall establish the terms and conditions of any such release. If the offense was a controlled substance violation, the conditions shall include a requirement that the offender submit to random substance abuse testing intermittently throughout the term of conditional release supervision, upon the direction of the correctional probation officer as defined in s. 943.10(3). The commission shall also determine whether the terms and conditions of such release have been violated and whether such violation warrants revocation of the conditional release.

(3) As part of the conditional release process, the commission shall determine:

(a) The amount of reparation or restitution.

(b) The consequences of the offense as reported by the aggrieved party.

(c) The aggrieved party's fear of the inmate or concerns about the release of the inmate.

(4) The commission shall provide to the aggrieved party information regarding the manner in which notice of any developments concerning the status of the inmate during the term of conditional release may be requested.

(5) Within 180 days prior to the tentative release date or provisional release date, whichever is earlier, a representative of the commission shall interview the inmate. The commission representative shall review the inmate's program participation, disciplinary record, psychological and medical records, and any other information pertinent to the impending release. A commission representative shall conduct a personal interview with the inmate for the purpose of determining the details of the inmate's release plan, including the inmate's planned residence and employment. The results of the interview must be forwarded to the commission in writing.

(6) Upon receipt of notice as required under s. 947.175, the commission shall conduct a review of the inmate's record for the purpose of establishing the terms and conditions of the conditional release. The commission may impose any special conditions it considers warranted from its review of the record. If the commission determines that the inmate is eligible for release under this section, the commission shall enter an order establishing the length of supervision and the conditions attendant thereto. However, an inmate who has been convicted of a violation of chapter 794 or found by the court to be a sexual predator is subject to the maximum level of supervision provided, with the mandatory conditions as required in subsection (7), and that supervision shall continue through the end of the releasee's original court-imposed sentence. The length of supervision must not exceed the maximum penalty imposed by the court.

(7) (a) Any inmate who is convicted of a crime committed on or after October 1, 1995, or who has been previously convicted of a crime committed on or after October 1, 1995, in violation of chapter 794, s. 800.04, s. 827.071, or s. 847.0145, and is subject to conditional release supervision, shall have, in addition to any other conditions imposed, the following special conditions imposed by the commission:

1. A mandatory curfew from 10 p.m. to 6 a.m. The court may designate another 8-hour period if the offender's employment precludes the above specified time, and such alternative is recommended by the Department of Corrections. If the court determines that imposing a curfew would endanger the victim, the court may consider alternative sanctions.

2. If the victim was under the age of 18, a prohibition on living within 1,000 feet of a school, day care center, park, playground, or other place where children regularly congregate.

3. Active participation in and successful completion of a sex offender treatment program with therapists specifically trained to treat sex offenders, at the releasee's own expense. If a specially trained therapist is not available within a 50-mile radius of the releasee's residence, the offender shall participate in other appropriate therapy.

4. A prohibition on any contact with the victim, directly or indirectly, including through a third person, unless approved by the victim, the offender's therapist, and the sentencing court.

5. If the victim was under the age of 18, a prohibition, until successful completion of a sex offender treatment program, on unsupervised contact with a child under the age of 18, unless authorized by the commission without another adult present who is responsible for the child's welfare, has been advised of the crime, and is approved by the commission.

6. If the victim was under age 18, a prohibition on working for pay or as a volunteer at any school, day care center, park, playground, or other place where children regularly congregate, as prescribed by the commission.

7. Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern.

8. A requirement that the releasee must submit two specimens of blood to the Florida Department of Law Enforcement to be registered with the
DNA database.

9. A requirement that the releasee make restitution to the victim, as determined by the sentencing court or the commission, for all necessary medical and related professional services relating to physical, psychiatric, and psychological care.

10. Submission to a warrantless search by the community control or probation officer of the probationer's or community controllee's person, residence, or vehicle.

(b) For a releasee whose crime was committed on or after October 1, 1997, in violation of chapter 794, s. 800.04, s. 827.071, or s. 847.0145, and who is subject to conditional release supervision, in addition to any other provision of this subsection, the commission shall impose the following additional conditions of conditional release supervision:

1. As part of a treatment program, participation in a minimum of one annual polygraph examination to obtain information necessary for risk management and treatment and to reduce the sex offender's denial mechanisms. The polygraph examination must be conducted by a polygrapher trained specifically in the use of the polygraph for the monitoring of sex offenders, where available, and at the expense of the sex offender. The results of the polygraph examination shall not be used as evidence in a hearing to prove that a violation of supervision has occurred.

2. Maintenance of a driving log and a prohibition against driving a motor vehicle alone without the prior approval of the supervising officer.

3. A prohibition against obtaining or using a post office box without the prior approval of the supervising officer.

4. If there was sexual contact, a submission to, at the probationer's or community controllee's expense, an HIV test with the results to be released to the victim or the victim's parent or guardian.

5. Electronic monitoring when deemed necessary by the community control or probation officer and his or her supervisor, and ordered by the court at the recommendation of the Department of Corrections.

(8) It is the finding of the Legislature that the population of offenders released from state prison into the community who meet the conditional release criteria poses the greatest threat to the public safety of the groups of offenders under community supervision. Therefore, the Department of Corrections is to provide intensive supervision by experienced correctional probation officers to conditional release offenders. Subject to specific appropriation by the Legislature, caseloads may be restricted to a maximum of 40 conditional release offenders per officer to provide for enhanced public safety and to effectively monitor conditions of electronic monitoring or curfews, if so ordered by the commission.

HISTORY: s. 19, ch. 88-122; ss. 12, 17, ch. 89-531; ss. 11, 20, ch. 90-337; s. 2, ch. 91-225; s. 8, ch. 91-280; s. 14, ch. 92-310; s. 1, ch. 93-2; s. 4, ch. 93-277; s. 4, ch. 93-417; s. 2, ch. 94-121; s. 3, ch. 94-294; s. 5, ch. 95-264; s. 57, ch. 95-283; s. 64, ch. 96-388; s. 10, ch. 97-78; s. 1872, ch. 97-102; s. 1, ch. 97-308; s. 3, ch. 2000-246.

NOTES:
n1 As enacted by s. 1, ch. 97-308. As enacted by s. 10, ch. 97-78, the language reads: "conditional release eligible sentences as provided herein."


 

TITLE XLVII CRIMINAL PROCEDURE AND CORRECTIONS
CHAPTER 943 DEPARTMENT OF LAW ENFORCEMENT

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Fla. Stat. § 943.325 (2000)
943.325 Blood specimen testing for
DNA analysis.

(1) (a) Any person who is convicted or was previously convicted in this state for any offense or attempted offense defined in chapter 794, chapter 800, s. 782.04, s. 784.045, s. 810.02, s. 812.133, or s. 812.135 and who is either:

1. Still incarcerated, or

2. No longer incarcerated but is within the confines of the legal state boundaries and is on probation, community control, parole, conditional release, control release, or any other court-ordered supervision,


shall be required to submit two specimens of blood to a Department of Law Enforcement designated testing facility as directed by the department.

(b) For the purpose of this section, the term "any person" shall include both juveniles and adults committed to or under the supervision of the Department of Corrections or the Department of Juvenile Justice or committed to a county jail.

(2) The withdrawal of blood for purposes of this section shall be performed in a medically approved manner and only under the supervision of a physician, registered nurse, licensed practical nurse, or duly licensed medical personnel.

n1 (3) Upon a conviction of any person for any offense under paragraph (1)(a) which results in the commitment of the offender to a county jail, correctional facility, or juvenile facility, the entity responsible for the facility shall assure that the blood specimens required by this section are promptly secured and transmitted to the Department of Law Enforcement. If the person is not incarcerated following such conviction, the person may not be released from the custody of the court or released pursuant to a bond or surety until the blood specimens required by this section have been taken. The chief judge of each circuit shall, in conjunction with the sheriff or other entity that maintains the county jail, assure implementation of a method to promptly collect required blood specimens and forward the specimens to the Department of Law Enforcement. The Department of Law Enforcement, in conjunction with the sheriff, the courts, the Department of Corrections, and the Department of Juvenile Justice, shall develop a statewide protocol for securing the blood specimens of any person required to provide specimens under this section. Personnel at the jail, correctional facility, or juvenile facility shall implement the protocol as part of the regular processing of offenders.

n1 (4) If any blood specimens submitted to the Department of Law Enforcement under this section are found to be unacceptable for analysis and use or cannot be used by the department in the manner required by this section, the Department of Law Enforcement may require that another set of blood specimens be taken as set forth in subsection (11).

(5) The Department of Law Enforcement shall provide the specimen vials, mailing tubes, labels, and instructions for the collection of blood specimens. The specimens shall thereafter be forwarded to the designated testing facility for analysis to determine genetic markers and characteristics for the purpose of individual identification of the person submitting the sample.

(6) The analysis, when completed, shall be entered into the automated database maintained by the Department of Law Enforcement for such purpose, and shall not be included in the state central criminal justice information repository.

(7) The results of a
DNA analysis and the comparison of analytic results shall be released only to criminal justice agencies as defined in s. 943.045(10), at the request of the agency. Otherwise, such information is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

(8) The Department of Law Enforcement and the statewide criminal laboratory analysis system shall establish, implement, and maintain a statewide automated personal identification system capable of, but not limited to, classifying, matching, and storing analyses of
DNA (deoxyribonucleic acid) and other biological molecules. The system shall be available to all criminal justice agencies.

(9) The Department of Law Enforcement shall:

(a) Receive, process, and store blood samples and the data derived therefrom furnished pursuant to subsection (1) or pursuant to a requirement of supervision imposed by the court or the Parole Commission with respect to a person convicted of any offense specified in subsection (1).

(b) Collect, process, maintain, and disseminate information and records pursuant to this section.

(c) Strive to maintain or disseminate only accurate and complete records.

(d) Adopt rules prescribing the proper procedure for state and local law enforcement and correctional agencies to collect and submit blood samples pursuant to this section.

(10) (a) The court shall include in the judgment of conviction for an offense specified in this section, or a finding that a person described in subsection (1) violated a condition of probation, community control, or any other court-ordered supervision, an order stating that blood specimens are required to be drawn by the appropriate agency in a manner consistent with this section and, unless the convicted person lacks the ability to pay, the person shall reimburse the appropriate agency for the cost of drawing and transmitting the blood specimens to the Florida Department of Law Enforcement. The reimbursement payment may be deducted from any existing balance in the inmate's bank account. If the account balance is insufficient to cover the cost of drawing and transmitting the blood specimens to the Florida Department of Law Enforcement, 50 percent of each deposit to the account must be withheld until the total amount owed has been paid. If the judgment places the convicted person on probation, community control, or any other court-ordered supervision, the court shall order the convicted person to submit to the drawing of the blood specimens as a condition of the probation, community control, or other court-ordered supervision. For the purposes of a person who is on probation, community control, or any other court-ordered supervision, the collection requirement must be based upon a court order, or as otherwise provided by the person in the absence of a court order. If the judgment sentences the convicted person to time served, the court shall order the convicted person to submit to the drawing of the blood specimens as a condition of such sentence.

(b) The appropriate agency shall cause the specimens to be drawn as soon as practical after conviction but, in the case of any person ordered to serve a term of incarceration as part of the sentence, the specimen shall be drawn as soon as practical after the receipt of the convicted person by the custodial facility. For the purpose of this section, the appropriate agency shall be the Department of Corrections whenever the convicted person is committed to the legal and physical custody of the department. Conviction information contained in the offender information system of the Department of Corrections shall be sufficient to determine applicability under this section. The appropriate agency shall be the sheriff or officer in charge of the county correctional facility whenever the convicted person is placed on probation, community control, or any other court-ordered supervision or form of supervised release or is committed to the legal and physical custody of a county correctional facility.

(c) Any person previously convicted of an offense specified in this section, or a crime which, if committed in this state, would be an offense specified in this section, and who is also subject to the registration requirement imposed by s. 775.13, shall be subject to the collection requirement of this section when the appropriate agency described in this section verifies the identification information of the person. The collection requirement of this section does not apply to a person as described in s. 775.13(5).

(d) For the purposes of this section, conviction shall include a finding of guilty, or entry of a plea of nolo contendere or guilty, regardless of adjudication or, in the case of a juvenile, the finding of delinquency.

n1 (e) If necessary, the state or local law enforcement or correctional agency having authority over the person subject to the sampling under this section shall assist in the procedure. The law enforcement or correctional officer so assisting may use reasonable force if necessary to require such person to submit to the withdrawal of blood. The withdrawal shall be performed in a reasonable manner. A hospital, clinical laboratory, medical clinic, or similar medical institution; a physician, certified paramedic, registered nurse, licensed practical nurse, or other personnel authorized by a hospital to draw blood; a licensed clinical laboratory director, supervisor, technologist, or technician; or any other person who assists a law enforcement officer is not civilly or criminally liable as a result of withdrawing blood specimens according to accepted medical standards when requested to do so by a law enforcement officer or any personnel of a jail, correctional facility, or juvenile detention facility, regardless of whether the convicted person resisted the drawing of blood specimens.

(f) If a judgment fails to order the convicted person to submit to the drawing of the blood specimens as mandated by this section, the state attorney may seek an amended order from the sentencing court mandating the submission of blood specimens in compliance with this section. As an alternative, the department, a state attorney, the Department of Corrections, or any law enforcement agency may seek a court order to secure the blood specimens as authorized in subsection (11).

n1 (11) If the Department of Law Enforcement determines that a convicted person who is required to submit blood specimens under this section has not provided the specimens, the department, a state attorney, or any law enforcement agency may apply to the circuit court for an order that authorizes taking the convicted person into custody for the purpose of securing the required specimens. The court shall issue the order upon a showing of probable cause. Following issuance of the order, the convicted person shall be transported to a location acceptable to the agency that has custody of the person, the blood specimens shall be withdrawn in a reasonable manner, and the person shall be released if there is no other reason to justify retaining the person in custody. The agency that takes the convicted person into custody may, but is not required to, transport the person back to the location where the person was taken into custody.

(12) Unless the n2 convicted person has been declared indigent by the court, the n2 convicted person shall pay the actual costs of collecting the blood specimens required under this section.

n1 (13) If a court, a law enforcement agency, or the Department of Law Enforcement fails to strictly comply with this section or to abide by a statewide protocol for collecting blood specimens, such failure is not grounds for challenging the validity of the collection or the use of a specimen, and evidence based upon or derived from the collected blood specimens may not be excluded by a court.

HISTORY: s. 1, ch. 89-335; s. 9, ch. 93-204; s. 3, ch. 94-90; s. 52, ch. 95-283; s. 19, ch. 96-322; s. 447, ch. 96-406; s. 8, ch. 98-81; s. 14, ch. 98-251; s. 7, ch. 98-417; s. 1, ch. 2000-233; s. 2, ch. 2000-328.

NOTES:
n1 As enacted by s. 8, ch. 98-81. Section 14, ch. 98-251, enacted substantially similar language in subsections (3) and (4), paragraph (e) of subsection (10), and subsections (11) and (13), and those versions read:

(3) Upon conviction of any person for any offense under paragraph (1)(a), resulting in the commitment of the offender to a county jail, correctional facility, or juvenile facility, the entity responsible for the facility shall ensure that a blood specimen as required by this section is promptly secured and transmitted to the Department of Law Enforcement. Should the disposition be any option other than commitment to incarceration in a county jail, correctional facility, or juvenile facility, the person shall not be released from the custody of the court or, when a bond or surety has been posted, shall not have the person's bond or surety released until such time as the blood specimen required by this section has been taken. The chief administrative judge of each circuit shall, in conjunction with the sheriff of each county or other entity maintaining the county jail, ensure that a method of prompt collection of the required blood specimen and forwarding to the Department of Law Enforcement is implemented. The Department of Law Enforcement, in conjunction with the sheriffs, courts, Department of Corrections, and Department of Juvenile Justice shall develop a statewide protocol for the securing of blood specimens for any person required to provide the specimen under this section who will not be incarcerated in such a manner as to allow the drawing of the specimen by jail personnel, correctional personnel, or juvenile justice personnel as part of the regular in-processing of offenders.

(4) Any person convicted of an offense under this section for which the submission of blood specimens is required shall, upon request, submit to the drawing of the person's blood. If the blood specimens submitted to the Department of Law Enforcement are found not to be acceptable for analysis and use under this section, or for any other reason cannot be used by the department in the manner required by this section, the department may require that another set of blood specimens be taken as provided in subsection (11).

* * * * *



(e) If necessary, the state or local law enforcement or correctional agency having authority over the person subject to the sampling under this section shall assist in the procedure. The law enforcement or correctional officer so assisting may use reasonable force if necessary to require such person to submit to the withdrawal of blood. The withdrawal shall be performed in a reasonable manner. No hospital, clinical laboratory, medical clinic, or similar medical institution or physician, certified paramedic, registered nurse, licensed practical nurse, or other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, or other person assisting a law enforcement officer shall incur any civil or criminal liability as a result of the withdrawal of blood specimens pursuant to accepted medical standards when requested by a law enforcement officer, or any jail, correctional, or juvenile justice detention personnel to draw blood for the purposes of this section, regardless of whether or not the subject resisted the blood drawing.

(11) Upon a determination by the Department of Law Enforcement that a person convicted of an offense for which blood specimens are to be provided under this section has not provided the required specimens, the department, any state attorney, or any law enforcement agency may apply to the circuit court for an order authorizing the taking of the person into custody for the purposes of securing the required specimen. The court, upon a showing of probable cause that the person is required to provide a specimen and has not provided the specimen, shall issue the order. Any person taken into custody under an order authorized by this subsection shall be promptly transported to a location acceptable to the agency having custody of the person where blood specimens may be drawn, and the blood specimens shall be withdrawn in a reasonable manner. Upon securing the specimens, if there is no other reason justifying retaining the person in custody, the person shall be released. The agency taking any such person into custody under the authority of this section may, but is not required to, transport the person back to the location where the person was taken into custody.

* * * * *



(13) The failure of any court or agency or the department to strictly comply with this section or to abide by a protocol shall not constitute a ground for challenging the validity of the collection or use of the sample as provided in this section or for exclusion of evidence based upon, or derived from, any specimen so taken.

n2 As amended by s. 8, ch. 98-81. Amendment by s. 14, ch. 98-251, uses the term "offender."



TITLE XLVII CRIMINAL PROCEDURE AND CORRECTIONS
CHAPTER 948 PROBATION AND COMMUNITY CONTROL

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Fla. Stat. § 948.03 (2000)
948.03 Terms and conditions of probation or community control.

(1) The court shall determine the terms and conditions of probation or community control. Conditions specified in paragraphs (a)-(m) do not require oral pronouncement at the time of sentencing and may be considered standard conditions of probation. Conditions specified in paragraphs (a)-(m) and (2)(a) do not require oral pronouncement at sentencing and may be considered standard conditions of community control. These conditions may include among them the following, that the probationer or offender in community control shall:

(a) Report to the probation and parole supervisors as directed.

(b) Permit such supervisors to visit him or her at his or her home or elsewhere.

(c) Work faithfully at suitable employment insofar as may be possible.

(d) Remain within a specified place.

(e) Make reparation or restitution to the aggrieved party for the damage or loss caused by his or her offense in an amount to be determined by the court. The court shall make such reparation or restitution a condition of probation, unless it determines that clear and compelling reasons exist to the contrary. If the court does not order restitution, or orders restitution of only a portion of the damages, as provided in s. 775.089, it shall state on the record in detail the reasons therefor.

(f) Effective July 1, 1994, and applicable for offenses committed on or after that date, make payment of the debt due and owing to a county or municipal detention facility under s. 951.032 for medical care, treatment, hospitalization, or transportation received by the felony probationer while in that detention facility. The court, in determining whether to order such repayment and the amount of such repayment, shall consider the amount of the debt, whether there was any fault of the institution for the medical expenses incurred, the financial resources of the felony probationer, the present and potential future financial needs and earning ability of the probationer, and dependents, and other appropriate factors.

(g) Support his or her legal dependents to the best of his or her ability.

(h) Make payment of the debt due and owing to the state under s. 960.17, subject to modification based on change of circumstances.

(i) Pay any application fee assessed under s. 27.52(1)(c) and attorney's fees and costs assessed under s. 938.29, subject to modification based on change of circumstances.

(j) Not associate with persons engaged in criminal activities.

(k) 1. Submit to random testing as directed by the correctional probation officer or the professional staff of the treatment center where he or she is receiving treatment to determine the presence or use of alcohol or controlled substances.

2. If the offense was a controlled substance violation and the period of probation immediately follows a period of incarceration in the state correction system, the conditions shall include a requirement that the offender submit to random substance abuse testing intermittently throughout the term of supervision, upon the direction of the correctional probation officer as defined in s. 943.10(3).

(l) Be prohibited from possessing, carrying, or owning any firearm unless authorized by the court and consented to by the probation officer.

(m) Be prohibited from using intoxicants to excess or possessing any drugs or narcotics unless prescribed by a physician. The probationer or community controllee shall not knowingly visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.

(n) Attend an HIV/AIDS awareness program consisting of a class of not less than 2 hours or more than 4 hours in length, the cost for which shall be paid by the offender, if such a program is available in the county of the offender's residence.

(o) Pay not more than $ 1 per month during the term of probation or community control to a nonprofit organization established for the sole purpose of supplementing the rehabilitative efforts of the Department of Corrections.

(2) (a) The court shall require intensive supervision and surveillance for an offender placed into community control, which may include but is not limited to:

1. Specified contact with the parole and probation officer.

2. Confinement to an agreed-upon residence during hours away from employment and public service activities.

3. Mandatory public service.

4. Supervision by the Department of Corrections by means of an electronic monitoring device or system.

(b) For an offender placed on criminal quarantine community control, the court shall require:

1. Electronic monitoring 24 hours per day.

2. Confinement to a designated residence during designated hours.

(3) (a) 1. The Department of Corrections may, at its discretion, electronically monitor an offender sentenced to community control.

2. The Department of Corrections shall electronically monitor an offender sentenced to criminal quarantine community control 24 hours per day.

(b) Any offender placed on community control who violates the terms and conditions of community control and is restored to community control may be supervised by means of an electronic monitoring device or system.

(c) For those offenders being electronically monitored, the Department of Corrections shall develop procedures to determine, investigate, and report the offender's noncompliance with the terms and conditions of sentence 24 hours per day. All reports of noncompliance shall be immediately investigated by a community control officer.

(d) The Department of Corrections may contract with local law enforcement agencies to assist in the location and apprehension of offenders who are in noncompliance as reported by the electronic monitoring system. This contract is intended to provide the department a means for providing immediate investigation of noncompliance reports, especially after normal office hours.

(4) The court shall require a diagnosis and evaluation to determine the need of a probationer or offender in community control for treatment. If the court determines that a need therefor is established by such diagnosis and evaluation process, the court shall require outpatient counseling as a term or condition of probation or community control for any person who was found guilty of any of the following, or whose plea of guilty or nolo contendere to any of the following was accepted by the court:

(a) Lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, or lewd or lascivious exhibition, as defined in s. 800.04.

(b) Sexual battery, as defined in chapter 794, against a child.

(c) Exploitation of a child as provided in s. 450.151, or for prostitution.

Such counseling shall be required to be obtained from a community mental health center, a recognized social service agency providing mental health services, or a private mental health professional or through other professional counseling. The plan for counseling for the individual shall be provided to the court for review.

(5) Conditions imposed pursuant to this subsection, as specified in paragraphs (a) and (b), do not require oral pronouncement at the time of sentencing and shall be considered standard conditions of probation or community control for offenders specified in this subsection.

(a) Effective for probationers or community controllees whose crime was committed on or after October 1, 1995, and who are placed under supervision for violation of chapter 794, s. 800.04, s. 827.071, or s. 847.0145, the court must impose the following conditions in addition to all other standard and special conditions imposed:

1. A mandatory curfew from 10 p.m. to 6 a.m. The court may designate another 8-hour period if the offender's employment precludes the above specified time, and such alternative is recommended by the Department of Corrections. If the court determines that imposing a curfew would endanger the victim, the court may consider alternative sanctions.

2. If the victim was under the age of 18, a prohibition on living within 1,000 feet of a school, day care center, park, playground, or other place where children regularly congregate, as prescribed by the court.

3. Active participation in and successful completion of a sex offender treatment program with therapists specifically trained to treat sex offenders, at the probationer's or community controllee's own expense. If a specially trained therapist is not available within a 50-mile radius of the probationer's or community controllee's residence, the offender shall participate in other appropriate therapy.

4. A prohibition on any contact with the victim, directly or indirectly, including through a third person, unless approved by the victim, the offender's therapist, and the sentencing court.

5. If the victim was under the age of 18, a prohibition, until successful completion of a sex offender treatment program, on unsupervised contact with a child under the age of 18, unless authorized by the sentencing court without another adult present who is responsible for the child's welfare, has been advised of the crime, and is approved by the sentencing court.

6. If the victim was under age 18, a prohibition on working for pay or as a volunteer at any school, day care center, park, playground, or other place where children regularly congregate.

7. Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender's deviant behavior pattern.

8. A requirement that the probationer or community controllee must submit two specimens of blood to the Florida Department of Law Enforcement to be registered with the
DNA data bank.

9. A requirement that the probationer or community controllee make restitution to the victim, as ordered by the court under s. 775.089, for all necessary medical and related professional services relating to physical, psychiatric, and psychological care.

10. Submission to a warrantless search by the community control or probation officer of the probationer's or community controllee's person, residence, or vehicle.

(b) Effective for a probationer or community controllee whose crime was committed on or after October 1, 1997, and who is placed on sex offender probation for a violation of chapter 794, s. 800.04, s. 827.071, or s. 847.0145, in addition to any other provision of this subsection, the court must impose the following conditions of probation or community control:

1. As part of a treatment program, participation at least annually in polygraph examinations to obtain information necessary for risk management and treatment and to reduce the sex offender's denial mechanisms. A polygraph examination must be conducted by a polygrapher trained specifically in the use of the polygraph for the monitoring of sex offenders, where available, and shall be paid by the sex offender. The results of the polygraph examination shall not be used as evidence in court to prove that a violation of community supervision has occurred.

2. Maintenance of a driving log and a prohibition against driving a motor vehicle alone without the prior approval of the supervising officer.

3. A prohibition against obtaining or using a post office box without the prior approval of the supervising officer.

4. If there was sexual contact, a submission to, at the probationer's or community controllee's expense, an HIV test with the results to be released to the victim and/or the victim's parent or guardian.

5. Electronic monitoring when deemed necessary by the community control or probation officer and his or her supervisor, and ordered by the court at the recommendation of the Department of Corrections.

(6) The enumeration of specific kinds of terms and conditions shall not prevent the court from adding thereto such other or others as it considers proper. However, the sentencing court may only impose a condition of supervision allowing an offender convicted of s. 794.011, s. 800.04, s. 827.071, or s. 847.0145, to reside in another state, if the order stipulates that it is contingent upon the approval of the receiving state interstate compact authority. The court may rescind or modify at any time the terms and conditions theretofore imposed by it upon the probationer or offender in community control. However, if the court withholds adjudication of guilt or imposes a period of incarceration as a condition of probation or community control, the period shall not exceed 364 days, and incarceration shall be restricted to either a county facility, a probation and restitution center under the jurisdiction of the Department of Corrections, a probation program drug punishment phase I secure residential treatment institution, or a community residential facility owned or operated by any entity providing such services.

(7) (a) If the court imposes a period of residential treatment or incarceration as a condition of probation or community control, the residential treatment or incarceration shall be restricted to the following facilities:

1. A Department of Corrections probation and restitution center;

2. A probation program drug punishment treatment community;

3. A community residential facility which is owned and operated by any public or private entity, excluding a community correctional center as defined in s. 944.026; or

4. A county-owned facility.

(b) It is the intent of the Legislature that a county jail be used as the last available alternative for placement of an offender as a condition of probation. However, this shall not create a right of placement for the probationer, nor shall it restrict judicial discretion in ordering such treatment or incarceration.

(c) Prior to admission to such a facility or treatment community, the court shall obtain an individual assessment and recommendation on the appropriate treatment needs pursuant to n1 chapter 953 or the Community Control Implementation Manual which shall be considered by the court in ordering such placements. Placement in such a facility or center, or in the phase I secure residential phase of a probation program drug punishment treatment community, shall not exceed 364 days. Early completion of an offender's placement shall be recommended to the court, when appropriate, by the facility or center supervisor, by the supervising probation officer, or by the program manager. However, with respect to the placement of a probationer pursuant to n1 chapter 953, such placement shall not be completed until satisfactory completion of the drug punishment program. Termination for cause from such a program shall be pursuant to n1 s. 953.25(4). The Department of Corrections is authorized to contract with appropriate agencies for provision of services.

(8) (a) Whenever an offender is required by the court to participate in any work program under the provisions of this chapter, enters into the pretrial intervention program pursuant to s. 948.08, or volunteers to work in a supervised work program conducted by a specified state, county, municipal, or community service organization or to work for the victim, either as an alternative to monetary restitution or as a part of the rehabilitative or community control program, the offender shall be considered an employee of the state for the purposes of chapter 440.

(b) In determining the average weekly wage, unless otherwise determined by a specific funding program, all remuneration received from the employer shall be considered a gratuity, and the offender shall not be entitled to any benefits otherwise payable under s. 440.15, regardless of whether the offender may be receiving wages and remuneration from other employment with another employer and regardless of his or her future wage-earning capacity. The provisions of this subsection do not apply to any person performing labor under a sentence of a court to perform community services as provided in s. 316.193.

(9) (a) As a condition of community control, probation, or probation following incarceration, require an offender who has not obtained a high school diploma or high school equivalency diploma or who lacks basic or functional literacy skills, upon acceptance by an adult education program, to make a good faith effort toward completion of such basic or functional literacy skills or high school equivalency diploma, as defined in s. 229.814, in accordance with the assessed adult general education needs of the individual offender. The court shall not revoke community control, probation, or probation following incarceration because of the offender's inability to achieve such skills or diploma but may revoke community control, probation, or probation following incarceration if the offender fails to make a good faith effort to achieve such skills or diploma. The court may grant early termination of community control, probation, or probation following incarceration upon the offender's successful completion of the approved program. As used in this subsection, "good faith effort" means the offender is enrolled in a program of instruction and is attending and making satisfactory progress toward completion of the requirements.

(b) A juvenile on community control who is a public school student must attend a public adult education program or a dropout prevention program, pursuant to s. 230.2316, which includes a second chance school or an alternative to expulsion, if the school district where the juvenile is enrolled offers such programs, unless the principal of the school determines that special circumstances warrant continuation in the regular educational school program.

(c) If a juvenile on community control attends a regular educational school program because a public adult education program or dropout prevention program, which includes a second chance school or an alternative to expulsion, is not available in the school district, the identity of the juvenile on community control, the nature of the felony offense committed by the juvenile, and the conditions of community control must be made known to each of the student's teachers.

(10) As a condition of probation, community control, or any other court-ordered community supervision, the court shall order persons convicted of offenses specified in s. 943.325 to submit to the drawing of the blood specimens as prescribed in that section as a condition of the probation, community control, or other court-ordered community supervision. For the purposes of this subsection, conviction shall include a finding of guilty, or entry of a plea of nolo contendere or guilty, regardless of adjudication, or, in the case of a juvenile, the finding of delinquency.

(11) Any order issued pursuant to subsection (10) shall also require the convicted person to reimburse the appropriate agency for the costs of drawing and transmitting the blood specimens to the Florida Department of Law Enforcement.

HISTORY: s. 23, ch. 20519, 1941; s. 5, ch. 77-452; s. 1, ch. 81-198; s. 3, ch. 83-75; s. 16, ch. 83-131; s. 192, ch. 83-216; s. 3, ch. 83-256; s. 8, ch. 84-363; s. 15, ch. 85-288; s. 5, ch. 87-211; s. 11, ch. 88-96; ss. 70, 71, ch. 88-122; s. 37, ch. 89-526; s. 10, ch. 90-287; ss. 8, 17, ch. 90-337; s. 11, ch. 91-225; s. 4, ch. 91-280; s. 23, ch. 92-310; s. 10, ch. 93-37; s. 15, ch. 93-227; s. 1, ch. 94-294; s. 1, ch. 95-189; ss. 53, 59, ch. 95-283; s. 1, ch. 96-170; s. 4, ch. 96-232; s. 54, ch. 96-312; s. 6, ch. 96-409; s. 22, ch. 97-78; s. 1877, ch. 97-102; s. 11, ch. 97-107; s. 27, ch. 97-234; s. 44, ch. 97-271; s. 3, ch. 97-308; s. 14, ch. 98-81; s. 15, ch. 98-251; s. 122, ch. 99-3; s. 13, ch. 99-201; s. 3, ch. 2000-246.

NOTES:
n1 Chapter 953 was repealed by s. 30, ch. 96-388.

GEORGIA

CHAPTER 4. PROOF GENERALLY
ARTICLE 4.
DNA ANALYSIS UPON CONVICTION OF CERTAIN SEX OFFENSES

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

O.C.G.A. § 24-4-60 (2000)
§ 24-4-60. Requirement for
DNA analysis of blood of persons convicted of certain sex offenses; storage of profile in data bank


Any person convicted of a criminal offense defined in Code Section 16-6-1, relating to the offense of rape; Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy; Code Section 16-6-3, relating to the offense of statutory rape; Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes; Code Section 16-6-5.1, relating to the offense of sexual assault against persons in custody, sexual assault against a person detained or a patient in a hospital or other institution, or sexual assault by a practitioner of psychotherapy against a patient; Code Section 16-6-6, relating to the offense of bestiality; Code Section 16-6-7, relating to the offense of necrophilia; or Code Section 16-6-22, relating to the offense of incest, shall have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for
DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. In addition, on and after July 1, 2000, any person convicted of a felony and incarcerated in a state correctional facility shall at the time of entering the prison system have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony prior to July 1, 2000, and who currently is incarcerated in a state correctional facility in this state for such offense but only when such a person is to be released from the state correctional facility. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony in this state on or after July 1, 2000, and who is incarcerated in a private correctional facility in this state for such offense pursuant to a contract with the Department of Corrections upon entering the facility, and for any person convicted of a felony prior to July 1, 2000, and who is incarcerated in a private correctional facility in this state pursuant to contract with the Department of Corrections, upon release. The analysis shall be performed by the Division of Forensic Sciences of the Georgia Bureau of Investigation. The division shall be authorized to contract with individuals or organizations for services to perform such analysis. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 24-4-63. For the purposes of this Code section, the term "state correctional facility" means a penal institution under the jurisdiction of the Department of Corrections, including inmate work camps and inmate boot camps; provided, however, that such term shall not include a probation detention center, probation diversion center, or probation boot camp under the jurisdiction of the Department of Corrections.

HISTORY: Code 1981, § 24-4-60, enacted by Ga. L. 1992, p. 2034, § 1; Ga. L. 2000, p. 1075, § 1.

NOTES:
THE 2000 AMENDMENT, effective July 1, 2000, substituted the present provisions for the former, which read: "Any person convicted of a criminal offense defined in Code Section 16-6-1, 16-6-2, 16-6-3, 16-6-4, 16-6-5, 16-6-5.1, 16-6-6, 16-6-7, or 16-6-22 shall have a sample of his or her blood taken for
DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. The analysis shall be performed by the Division of Forensic Sciences of the Georgia Bureau of Investigation. The division shall be authorized to contract with individuals or organizations for services to perform such analysis. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 24-4-63."

CODE COMMISSION NOTES. --Pursuant to Code Section 28-9-5, in 2000, a comma was substituted for a semicolon following "the offense of incest" in the first sentence and "this Code section" was substituted for "this Code Section" near the beginning of the last sentence.

EDITOR'S NOTES. --Ga. L. 2000, p. 1075, § 6, not codified by the General Assembly, provides: "The provisions of this Act shall not be construed as requiring the Department of Corrections or the Georgia Bureau of Investigation to fully implement this Act prior to funds being appropriated or otherwise available for such purpose. If funds are not available, the director of the Georgia Bureau of Investigation or the director's designee shall be authorized to designate those offenses for which samples shall be analyzed."

LAW REVIEWS. --For note on 1992 enactment of this article, see 9 Ga. St. U.L. Rev. 260 (1992).

RESEARCH REFERENCES

ALR. --Validity, construction, and operation of state
DNA database statutes, 76 ALR5th 239.

NOTES APPLICABLE TO ENTIRE TITLE

CROSS REFERENCES. --Criminal penalties for tampering with evidence, influencing witnesses, etc., § 16-10-90 et seq.

LAW REVIEWS. --For article, "Self-serving Declarations in Georgia," see 12 Ga. B.J. 388 (1950). For article reviewing the applications of criminal trial evidence law in 1976 to 1977, see 29 Mercer L. Rev. 55 (1977). For article discussing developments in the law of evidence in Georgia in 1976 to 1977, see 29 Mercer L. Rev. 145 (1977). For article surveying cases dealing with law of evidence from June 1977 through May 1978, see 30 Mercer L. Rev. 91 (1978). For article surveying Georgia cases in the area of tort law from June 1, 1977, through May 1978, see 30 Mercer L. Rev. 215 (1978). For annual survey on evidence, see 36 Mercer L. Rev. 209 (1984). For annual survey of evidence law, see 39 Mercer L. Rev. 213 (1987). For annual survey on law of evidence, see 42 Mercer L. Rev. 223 (1990). For annual eleventh circuit survey of the law of evidence, see 42 Mercer L. Rev. 1451 (1991). For annual survey on law of evidence, see 43 Mercer L. Rev. 257 (1991). For annual eleventh circuit survey of the law of evidence, see 43 Mercer L. Rev. 1173 (1992). For annual survey on law of evidence, see 44 Mercer L. Rev. 213 (1992). For annual survey article on law of evidence, see 45 Mercer L. Rev. 229 (1993). For annual survey article on evidence issues, see 46 Mercer L. Rev. 233 (1994). For survey of 1995 Eleventh Circuit cases on evidence, see 47 Mercer L. Rev. 837 (1996).
For annual survey article on law of evidence, see 4 Mercer L. Rev. 149 (1997). For note discussing the admissibility of polygraph test results upon stipulation of the parties in light of State v. Chambers, 240 Ga. 76, 239 S.E.2d 324 (1977), see 30 Mercer L. Rev. 357 (1978).

JUDICIAL DECISIONS

INTENT OF EVIDENCE RULES. --The restrictive rules of evidence are intended to prevent verdicts from being based on surmise, and not to exclude facts which, with others, tend to establish the charge. Allen v. State, 71 Ga. App. 517, 31 S.E.2d 107 (1944).

NOTES APPLICABLE TO ENTIRE CHAPTER

LAW REVIEWS. --For article, "An Analysis of Georgia's Proposed Rules of Evidence," see 26 Ga. St. B.J. 173 (1990). For annual survey article on evidence, see 50 Mercer L. Rev. 229 (1998).
Note, "Evidence-Voiceprints-The Value of Spectrographic Analysis," see 9 Ga. St. B.J. 242 (1973).

JUDICIAL DECISIONS

DOCUMENTS MUST BE OFFERED. --It is elementary that documents upon which a party rests his case must be offered into evidence. Hadden v. Owens, 154 Ga. App. 467, 268 S.E.2d 760 (1980).

DOCUMENTS ADMISSIBLE. --Documentary evidence illustrative of oral testimony and authenticated by oral testimony is admissible. King v. Browning, 246 Ga. 46, 268 S.E.2d 653 (1980).

TAMPERING WITH EVIDENCE. --It is not necessary that the state negative all possibility of tampering with evidence but only that it show that it is reasonably certain there was no alteration -- when there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to its weight. Marshall v. State, 153 Ga. App. 198, 264 S.E.2d 718 (1980).

LIE DETECTOR TEST. --Upon an express stipulation of the parties that they shall be admissible, the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have. Jordan v. State, 159 Ga. App. 716, 285 S.E.2d 71 (1981).

PROOF OF A FACT BY UNOBJECTED-TO EVIDENCE RENDERS HARMLESS SUBSEQUENT INCOMPETENT OR INADMISSIBLE EVIDENCE. Lightsey v. State, 160 Ga. App. 62, 286 S.E.2d 41 (1981).

RESEARCH REFERENCES

ALR. --Death certificate as evidence, 17 ALR 359, 42 ALR 1454, 96 ALR 324.
Admissibility of evidence obtained by illegal search and seizure, 32 ALR 408, 41 ALR 1145, 52 ALR 477, 88 ALR 348, 134 ALR 819, 150 ALR 566, 50 ALR2d 531.
Admissibility in favor of writer of unanswered letter not part of mutual correspondence, 34 ALR 560, 55 ALR 460.
Admissibility in favor of accused in criminal case of extrajudicial confession by stranger, 48 ALR 348.
Admission of bankrupt or insolvent before or during bankruptcy or insolvency proceedings as evidence against trustee in bankruptcy or assignee in insolvency, 53 ALR 650.
Presumption or burden of proof as to whether or not instrument affecting title to property is recorded, 53 ALR 668.
Admissibility of evidence obtained by government or other public officer by intercepting letter or telegraph or telephone message, 53 ALR 1485, 66 ALR 397, 134 ALR 614.
Demonstrative evidence on issue of negligence or contributory negligence at railroad crossing, 55 ALR 1340.
Conduct and actions of animals or fowls as evidence, 61 ALR 888.
Admissibility of evidence of other offenses in criminal prosecution to prove identity of defendant, 63 ALR 602.
Admissibility of subsequent declarations of vendor on issue whether sale was in fraud of creditors, 64 ALR 797.
Admissibility of evidence as to character or conduct of plaintiff or reputation of his house in action for alienation of affections or criminal conversation, 68 ALR 560.
Admissibility of check stubs as evidence, 68 ALR 692.
Admissibility of report of operator filed pursuant to law, respecting automobile accident, 69 ALR 905.
Production of paper purporting to be indorsed in blank by payee or by a special indorsee as prima facie evidence of plaintiff's title, 85 ALR 304.
Experimental evidence as affected by similarity or dissimilarity of conditions, 85 ALR 479.
Admissibility in criminal prosecution of adjudication or judgment in civil case or procedure, 87 ALR 1258.
Tax deeds and recitals therein as evidence of regularity of tax proceedings as to advertising and notice of sale, and as to time, manner, and place of sale, 88 ALR 264.
Admissibility and weight of evidence of resemblance on question of paternity or other relationship, 95 ALR 314.
Competency of testimony as to one's mental condition, based upon handwriting, 103 ALR 900.
Admissibility of telephone conversations in evidence, 105 ALR 326.
Questions of evidence involved in the inspection and examination of typewritten documents and typewriting machines, 106 ALR 721.
Offering improper evidence, or asking improper question, as ground for new trial or reversal, 109 ALR 1089.
Admissibility of testimony of person who spoke or wrote the words upon which an action for slander or libel is predicated as to his intention or the sense in which the words were spoken or written, 113 ALR 670.
Admissibility of declarations of testator on issue of undue influence, 148 ALR 1225.
Admissibility of report of public officer or employee on cause of or responsibility for injury to person or damage to property, 153 ALR 163; 69 ALR2d 1148.
Ancient instrument of executor, administrator, receiver, or other fiduciary or officer as affected by matters of judicial or other public record touching his authority, 159 ALR 436.
Admissibility in civil case of testimony by one charged with willful misconduct as to his intention or state of mind at time in question, 171 ALR 683.
Modern status of rule governing admissibility of evidence obtained by unlawful search and seizure, 50 ALR2d 531.
Admissibility of report of police or other public officer or employee, or portions of report, as to cause of or responsibility for accident, injury to person, or damage to property, 69 ALR2d 1148.
Authentication or verification of photograph as basis for introduction in evidence, 9 ALR2d 899; 41 ALR4th 812; 41 ALR4th 877.
Proof of unadjudged incompetency which prevents running of statute of limitations, 9 ALR2d 964.
Propriety of permitting jury to take X-ray picture, introduced in evidence, with them into jury room, 10 ALR2d 918.
Admissibility of evidence of fact of making or receiving telephone calls, 13 ALR2d 1409.
Admissibility of posed photograph based on recollection of position of persons or movable objects, 19 ALR2d 877.
Valuation for taxation purposes as admissible to show value for other purposes, 39 ALR2d 209.
Admissibility, in Federal Employers' Liability Act action, of rules, practices, precautions, safety devices, etc., used by other railroads, 43 ALR2d 618.
Admissibility of opinion or estimate by nonexpert witness in personal injury action of future hospital expenses, future hospitalization, or the like, 45 ALR2d 1148.
Right to have reporter's notes read to jury, 50 ALR2d 176.
Admissibility in evidence of withdrawn, superseded, amended, or abandoned pleading as containing admissions against interest, 52 ALR2d 516.
Admissibility of sound recordings, in evidence, 58 ALR2d 1024; 57 ALR3d 746; 58 ALR3d 598.
Admissibility of photograph of corpse in prosecution for homicide or civil action for causing death, 73 ALR2d 769.
Admissibility in evidence, in civil action, of tachograph or similar paper or tape recording of speed of motor vehicle, railroad locomotive, or the like, 73 ALR2d 1025.
Admissibility, in homicide prosecution, of evidence as to tests made to ascertain distance from gun to victim when gun was fired, 86 ALR2d 611.
Admissibility of evidence of accused's re-enactment of crime, 100 ALR2d 1257.
Official death certificate as evidence of cause of death in civil or criminal action, 21 ALR3d 418.
Admissibility, and prejudicial effect of admission, of "mug shot," "rogues' gallery" photograph, or photograph taken in prison, of defendant in criminal trial, 30 ALR3d 908.
Refusal of defendant in "public figure" libel case to identify claimed sources as raising presumption against existence of source, 19 ALR4th 919.
Admissibility of evidence of fingernail comparisons in criminal case, 40 ALR4th 575.
Consumption or destruction of physical evidence due to testing or analysis by prosecution's expert as warranting suppression of evidence or dismissal of case against accused in state court, 40 ALR4th 594.
Admissibility of visual recording of event or matter giving rise to litigation or prosecution, 41 ALR4th 812.
Admissibility of visual recording of event or matter other than that giving rise to litigation or prosecution, 41 ALR4th 877.
Proof of mailing by evidence of business or office custom, 45 ALR4th 476.
Admissibility and weight of evidence of prior misidentification of accused in connection with commission of crime similar to that presently charged, 50 ALR4th 1049.
Admissibility of traffic conviction in later state civil trial, 73 ALR4th 691.
Admissibility of lie detector test results, or of offer or refusal to take test, in attorney disciplinary proceeding, 79 ALR4th 576.
Admissibility, in homicide prosecution, of evidence as to tests made to ascertain distance from gun to victim when gun was fired, 11 ALR5th 497.
Propriety of attorney's surreptitious sound recording of statements by others who are or may become involved in litigation. 32 ALR5th 715.
Admissibility in homicide prosecution of allegedly gruesome or inflammatory visual recording of crime scene, 37 ALR5th 515.
Failure of police to preserve potentially exculpatory evidence as violating criminal defendant's rights under state constitution, 40 ALR5th 113.

TITLE 24. EVIDENCE
CHAPTER 4. PROOF GENERALLY
ARTICLE 4.
DNA ANALYSIS UPON CONVICTION OF CERTAIN SEX OFFENSES

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

O.C.G.A. § 24-4-62 (2000)
§ 24-4-62. Procedure for analysis and storage of blood sample; use of remainder of sample not subjected to analysis; confidentiality of results


Whether or not the results of an analysis are to be included in the data bank, the bureau shall conduct the
DNA analysis in accordance with procedures adopted by the bureau to determine identification characteristics specific to the individual whose sample is being analyzed. The director of the Georgia Bureau of Investigation or his or her designated representative shall complete and maintain on file a form indicating the name of the person whose sample is to be analyzed, the date and by whom the sample was received and examined, and a statement that the seal on the container containing the sample had not been broken or otherwise tampered with. The remainder of a sample submitted for analysis and inclusion in the data bank pursuant to Code Section 24-4-60 may be divided, if possible, labeled as provided for the original sample, and securely stored by the bureau in accordance with specific procedures of the bureau to ensure the integrity and confidentiality of the samples. All or part of the remainder of that sample may be used only to create a statistical data base provided no identifying information on the individual whose sample is being analyzed is included or for retesting by the bureau to validate or update the original analysis. A report of the results of a DNA analysis conducted by the bureau as authorized, including the identifying information, shall be made and maintained at the bureau. Except as specifically provided in this Code section and Code Section 24-4-63, the results of the analysis shall be securely stored and shall remain confidential.

HISTORY: Code 1981, § 24-4-62, enacted by Ga. L. 1992, p. 2034, § 1; Ga. L. 2000, p. 1075, § 3.

NOTES:
THE 2000 AMENDMENT, effective July 1, 2000, in the second sentence, inserted "or her", deleted "blood" preceding the second instance of "sample" and substituted "container containing the sample" for "tube"; and in the third sentence, deleted "blood" preceding the first instance of "sample" and inserted "if possible,".

EDITOR'S NOTES. --Ga. L. 2000, p. 1075, § 6, not codified by the General Assembly, provides: "The provisions of this Act shall not be construed as requiring the Department of Corrections or the Georgia Bureau of Investigation to fully implement this Act prior to funds being appropriated or otherwise available for such purpose. If funds are not available, the director of the Georgia Bureau of Investigation or the director's designee shall be authorized to designate those offenses for which samples shall be analyzed."

RESEARCH REFERENCES

ALR. --Authentication of blood sample taken from human body for purposes other than determining blood alcohol content, 77 ALR5th 201.

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, chapter or title.

TITLE 24. EVIDENCE
CHAPTER 4. PROOF GENERALLY
ARTICLE 4.
DNA ANALYSIS UPON CONVICTION OF CERTAIN SEX OFFENSES

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

O.C.G.A. § 24-4-63 (2000)
§ 24-4-63. Dissemination of information in data bank to law enforcement officials; request for search; separate statistical data base authorized; fee for search and comparative analysis


(a) It shall be the duty of the bureau to receive samples and to analyze, classify, and file the results of
DNA identification characteristics of samples submitted pursuant to Code Section 24-4-60 and to make such information available as provided in this Code section. The results of an analysis and comparison of the identification of the characteristics from two or more biological samples shall be made available directly to federal, state, and local law enforcement officers upon a request made in furtherance of an official investigation of any criminal offense. A request may be made by personal contact, mail, or electronic means. The name of the requestor and the purpose for which the information is requested shall be maintained on file with the bureau.

(b) (1) Upon his or her request, a copy of the request for search shall be furnished to any person identified and charged with an offense as the result of a search of information in the data bank. Only when a sample or
DNA profile supplied by the requestor satisfactorily matches the requestor's profile in the data bank shall the existence of data in the data bank be confirmed or identifying information from the data bank be disseminated.

(2) The name of the convicted offender whose profile is contained in the data bank may be related to any other data bases which are constructed for law enforcement purposes and may be disseminated only for law enforcement purposes.

(3) Upon a showing by the defendant in a criminal case that access to the
DNA data bank is material to the investigation, preparation, or presentation of a defense at trial or in a motion for a new trial, a superior court having proper jurisdiction over such criminal case shall direct the bureau to compare a DNA profile which has been generated by the defendant through an independent test against the data bank, provided that such DNA profile has been generated in accordance with standards for forensic DNA analysis adopted pursuant to 42 U.S.C. Section 14131, as amended.

(c) The bureau shall develop procedures governing the methods of obtaining information from the data bank in accordance with this Code section and procedures for verification of the identity and authority of the requestor. The bureau shall specify the positions in that agency which require regular access to the data bank and samples submitted as a necessary function of the job.

(d) The bureau may create a separate statistical data base comprised of
DNA profiles of samples of persons whose identity is unknown. Nothing in this Code section or Code Section 24-4-64 shall prohibit the bureau from sharing or otherwise disseminating the information in the statistical data base with law enforcement or criminal justice agencies within or outside the state.

(e) The bureau may charge a reasonable fee to search and provide a comparative analysis of
DNA profiles in the data bank to any authorized law enforcement agency outside of the state.

HISTORY: Code 1981, § 24-4-63, enacted by Ga. L. 1992, p. 2034, § 1; Ga. L. 2000, p. 1075, § 4.

NOTES:
THE 2000 AMENDMENT, effective July 1, 2000, in the first sentence of subsection (a), deleted "blood" preceding "samples" in two places and deleted "profiles" following "characteristics"; redesignated former subsection (b) as present paragraph (1) of subsection (b) and added paragraphs (2) and (3); substituted "samples" for "sample" in the last sentence of subsection (c); and deleted "blood" preceding "samples" in the first sentence of subsection (d).

CODE COMMISSION NOTES. --Pursuant to Code Section 28-9-5, in 2000, "identity" was substituted for "identify" in the first sentence in subsection (c).

EDITOR'S NOTES. --Ga. L. 2000, p. 1075, § 6, not codified by the General Assembly, provides: "The provisions of this Act shall not be construed as requiring the Department of Corrections or the Georgia Bureau of Investigation to fully implement this Act prior to funds being appropriated or otherwise available for such purpose. If funds are not available, the director of the Georgia Bureau of Investigation or the director's designee shall be authorized to designate those offenses for which samples shall be analyzed."

LAW REVIEWS. --For note, "A Modern Day Arthur Dimmesdale: Public Notification When Sex Offenders Are Released into the Community", see 12 Ga. St. U. L. Rev. 1187.

JUDICIAL DECISIONS

CITED in Bickley v. State, 227 Ga. App. 413, 489 S.E.2d 167 (1997).

RESEARCH REFERENCES

ALR. --Validity, construction, and operation of state
DNA database statutes, 76 ALR5th 239.

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, chapter or title.


TITLE 24. EVIDENCE
CHAPTER 4. PROOF GENERALLY
ARTICLE 4.
DNA ANALYSIS UPON CONVICTION OF CERTAIN SEX OFFENSES

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

O.C.G.A. § 24-4-64 (2000)
§ 24-4-64. Unlawful dissemination or use of information; obtaining sample without authority


(a) Any person who, without authority, disseminates information contained in the data bank shall be guilty of a misdemeanor. Any person who disseminates, receives, or otherwise uses or attempts to so use information in the data bank, knowing that such dissemination, receipt, or use is for a purpose other than as authorized by law, shall be guilty of a misdemeanor of a high and aggravated nature.

(b) Except as authorized by law, any person who, for purposes of having
DNA analysis performed, obtains or attempts to obtain any sample submitted to the Division of Forensic Sciences for analysis shall be guilty of a felony.

HISTORY: Code 1981, § 24-4-64, enacted by Ga. L. 1992, p. 2034, § 1.

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, chapter or title.


TITLE 24. EVIDENCE
CHAPTER 4. PROOF GENERALLY
ARTICLE 4.
DNA ANALYSIS UPON CONVICTION OF CERTAIN SEX OFFENSES

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

O.C.G.A. § 24-4-65 (2000)
§ 24-4-65. Expungement of profile in data bank upon reversal and dismissal of conviction


A person whose
DNA profile has been included in the data bank pursuant to this article may request that it be expunged on the grounds that the conviction on which the authority for including his or her DNA profile was based has been reversed and the case dismissed. The bureau shall purge all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person upon receipt of a written request that such data be expunged, pursuant to this Code section, and a certified copy of the court order reversing and dismissing the conviction.

HISTORY: Code 1981, § 24-4-65, enacted by Ga. L. 1992, p. 2034, § 1; Ga. L. 2000, p. 1075, § 5.

NOTES:
THE 2000 AMENDMENT, effective July 1, 2000, in the first sentence, deleted "felony" preceding "conviction" and inserted "or her".

EDITOR'S NOTES. --Ga. L. 2000, p. 1075, § 6, not codified by the General Assembly, provides: "The provisions of this Act shall not be construed as requiring the Department of Corrections or the Georgia Bureau of Investigation to fully implement this Act prior to funds being appropriated or otherwise available for such purpose. If funds are not available, the director of the Georgia Bureau of Investigation or the director's designee shall be authorized to designate those offenses for which samples shall be analyzed."

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, chapter or title.

TITLE 35. LAW ENFORCEMENT OFFICERS AND AGENCIES
CHAPTER 3. GEORGIA BUREAU OF INVESTIGATION
ARTICLE 6. DIVISION OF FORENSIC SCIENCES

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

O.C.G.A. § 35-3-151 (2000)
§ 35-3-151. Responsibilities


The Division of Forensic Sciences of the Georgia Bureau of Investigation:

(1) Shall provide a state-wide system of laboratories dedicated to conducting forensic analysis of evidence submitted to the laboratory by law enforcement agencies, prosecuting attorneys, coroners, and medical examiners;

(2) Shall provide forensic services to the criminal justice system for the examination and analysis of evidence in the areas of medical examiner inquiries, latent fingerprints, photography, questioned documents, firearms and weapons, trace evidence, implied consent, blood alcohol, toxicology, chemistry, drugs, serology,
DNA, and such other areas as the director may authorize or the board shall direct;

(3) Shall establish standards for the identification, collection, transportation, and analysis of forensic evidence;

(4) Shall facilitate independent testing or analysis of evidence within the possession, custody, or control of the division as provided in paragraph (3) of subsection (a) of Code Section 17-16-4, relating to discovery in criminal cases;

(5) Shall provide for and establish uniform fees as approved by the board to be paid to medical examiners, dentists, and other professionals for participating in medical examiners' inquiries or coroners' inquests pursuant to Article 2 of Chapter 16 of Title 45, known as the "Georgia Death Investigation Act";

(6) May assist in the training of law enforcement officers, prosecuting attorneys, coroners, and medical examiners as it relates to forensic sciences in cooperation with the Georgia Peace Officer Standards and Training Council, the Prosecuting Attorneys' Council of the State of Georgia, and the Georgia Coroner's Training Council, as appropriate; and

(7) May assist in the training of judges and attorneys as it relates to forensic sciences in cooperation with the Institute of Continuing Judicial Education of Georgia and the Institute of Continuing Legal Education, as appropriate.

HISTORY: Code 1981, § 35-3-151, enacted by Ga. L. 1997, p. 1421, § 3.

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, chapter or title.



TITLE 40. MOTOR VEHICLES AND TRAFFIC
CHAPTER 5. DRIVERS' LICENSES
ARTICLE 3. CANCELLATION, SUSPENSION, AND REVOCATION OF LICENSES

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

O.C.G.A. § 40-5-55 (2000)
§ 40-5-55. Implied consent to chemical tests


(a) The State of Georgia considers that the persons who are under the influence of alcohol or drugs while operating a motor vehicle or who have a blood alcohol concentration of 0.10 grams or more at any time within three hours after operating a motor vehicle from alcohol consumed before such driving or actual physical control ended or who have any amount of marijuana or any controlled substance without prescription present in their blood or urine, without regard to the presence of alcohol, while operating a motor vehicle constitute a direct and immediate threat to the welfare and safety of the general public. Therefore, any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities. The test or tests shall be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391. The test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which of the test or tests shall be administered, provided a blood test with drug screen may be administered to any person operating a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities.

(b) Any person who is dead, unconscious, or otherwise in a condition rendering such person incapable of refusal shall be deemed not to have withdrawn the consent provided by subsection (a) of this Code section, and the test or tests may be administered, subject to Code Section 40-6-392.

(c) As used in this Code section, the term "traffic accident resulting in serious injuries or fatalities" means any motor vehicle accident in which a person was killed or in which one or more persons suffered a fractured bone, severe burns, disfigurement, dismemberment, partial or total loss of sight or hearing, or loss of consciousness.

HISTORY: Ga. L. 1968, p. 448, § 2; Ga. L. 1974, p. 562, § 2; Ga. L. 1974, p. 633, § 3; Code 1933, § 68B-306, enacted by Ga. L. 1975, p. 1008, § 1; Ga. L. 1983, p. 1000, § 3; Ga. L. 1985, p. 630, § 1; Ga. L. 1985, p. 758, § 2; Ga. L. 1987, p. 1489, § 1; Ga. L. 1989, p. 1698, § 1; Ga. L. 1990, p. 2048, § 4; Ga. L. 1991, p. 1886, § 2; Ga. L. 1992, p. 912, § 1; Ga. L. 1992, p. 2564, § 1; Ga. L. 1993, p. 940, § 2.

NOTES:
CROSS REFERENCES. --Administration of chemical tests; refusal to submit to test, § 40-5-67.1.

CODE COMMISSION NOTES. --Pursuant to Code Section 28-9-5, in 1992, subsection (g) was redesignated as present subsection (c) in light of the amendment to this section by Ga. L. 1992, p. 2564, § 1.

LAW REVIEWS. --For annual survey of administrative law, see 38 Mercer L. Rev. 17 (1986).
For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 298 (1992).

JUDICIAL DECISIONS

ANALYSIS
I. General Considerations
II. Notice
III. Testing
IV. Serious Injury
V. Admissibility

I. GENERAL CONSIDERATIONS

STRICT CONSTRUCTION. --Section is in derogation of the common law and must be strictly construed and followed. Hardison v. Chastain, 151 Ga. App. 678, 261 S.E.2d 425 (1979).

CONSTITUTIONALITY. --Since, under the Constitution of Georgia, the state may constitutionally take a blood sample from a defendant without his consent, this section and § 40-6-392 grant, rather than deny, a right to a defendant by providing for refusal to take such a test. Allen v. State, 254 Ga. 433, 330 S.E.2d 588 (1985).
The choice provided to a DUI defendant under Georgia law -- submitting to a blood-alcohol test or refusing to submit, with resultant sanctions -- is not so painful, dangerous, or severe, or so violative of religious beliefs, that no choice actually exists, and does not amount to compulsion on behalf of the state or a violation of due process. Allen v. State, 254 Ga. 433, 330 S.E.2d 588 (1985).
Nothing in the implied consent law prohibits an officer from advising a driver of his implied consent rights and requesting multiple chemical tests at one time, and such a request would not violate the fourth amendment as an unreasonable attempt to "shop" through his bodily fluids in search of evidence. McKeown v. State, 187 Ga. App. 685, 371 S.E.2d 243 (1988).
The choice afforded a suspect under this code section either to agree or refuse to take a test, is not protected by the privilege against self-incrimination, since there is a distinction between compelling an arrestee to perform some act such as a field sobriety test versus requiring the arrestee to submit to the collection of evidence from his person, such as providing a urine sample. Kehinde v. State, 236 Ga. App. 400, 512 S.E.2d 311 (1999).

ADVICE OF COUNSEL AT TIME OF TEST. --Person is not entitled to advice of counsel when deciding whether to submit to test under this section. Department of Pub. Safety v. Maples, 149 Ga. App. 484, 254 S.E.2d 724 (1979); Hardison v. Chastain, 151 Ga. App. 678, 261 S.E.2d 425 (1979).

RIGHTS READ BY NON-ARRESTING OFFICER. --The implied consent statute was not violated because an officer other than the arresting officer read defendant his rights. Edge v. State, 226 Ga. App. 559, 487 S.E.2d 117 (1997).

CITED in Cofer v. Schultz, 146 Ga. App. 771, 247 S.E.2d 586 (1978); Cofer v. Summerlin, 147 Ga. App. 721, 250 S.E.2d 174 (1978); Longino v. Cofer, 148 Ga. App. 341, 251 S.E.2d 113 (1978); Jackson v. State, 152 Ga. App. 441, 263 S.E.2d 181 (1979); Adams v. Hardison, 153 Ga. App. 152, 264 S.E.2d 693 (1980); Milner v. Department of Pub. Safety, 153 Ga. App. 313, 265 S.E.2d 310 (1980); Tolbert v. Hicks, 158 Ga. App. 642, 281 S.E.2d 368 (1981); Willis v. State, 249 Ga. 261, 290 S.E.2d 87 (1982); Harper v. State, 164 Ga. App. 230, 296 S.E.2d 782 (1982); Smith v. State, 165 Ga. App. 333, 298 S.E.2d 587 (1982); Epps v. State, 169 Ga. App. 157, 312 S.E.2d 146 (1983); Patton v. State, 170 Ga. App. 807, 318 S.E.2d 231 (1984); Hardison v. Sellers, 171 Ga. App. 327, 319 S.E.2d 134 (1984); State v. Holton, 173 Ga. App. 241, 326 S.E.2d 235 (1984); McElroy v. State, 173 Ga. App. 685, 327 S.E.2d 805 (1985); Mitchell v. State, 174 Ga. App. 594, 330 S.E.2d 798 (1985); Thompson v. State, 175 Ga. App. 645, 334 S.E.2d 312 (1985); Mathews v. State, 176 Ga. App. 394, 336 S.E.2d 259 (1985); State v. Brown, 178 Ga. App. 307, 342 S.E.2d 779 (1986); State v. Greene, 178 Ga. App. 875, 344 S.E.2d 771 (1986); State v. Hughes, 181 Ga. App. 464, 352 S.E.2d 643 (1987); Napier v. State, 184 Ga. App. 770, 362 S.E.2d 501 (1987); Odom v. State, 185 Ga. App. 496, 364 S.E.2d 626 (1988); Hunter v. State, 191 Ga. App. 769, 382 S.E.2d 679 (1989); Casas v. State, 193 Ga. App. 53, 387 S.E.2d 20 (1989); State v. Webb, 212 Ga. App. 872, 443 S.E.2d 630 (1994); Miles v. Ahearn, 243 Ga. App. 741, 534 S.E.2d 175 (2000); Fairbanks v. State, 244 Ga. App. 123, 534 S.E.2d 529 (2000).

II. NOTICE

NO RIGHT TO MIRANDA WARNINGS BEFORE TAKING BREATH TEST. --Evidence of defendant's refusal to take a breath test did not need to be excluded, simply because the officer did not advise him of his rights. Lankford v. State, 204 Ga. App. 405, 419 S.E.2d 498 (1992), cert. denied, 506 U.S. 1051, 113 S. Ct. 972, 122 L. Ed. 2d 127 (1993).
The choice afforded a suspect under this section and § 40-6-392, either to agree or refuse to take a blood-alcohol test, is not protected by the privilege against self-incrimination and the form signed by defendant, agreeing to take a breath test, was likewise unprotected, such that the court erred in suppressing it based on the police officer's failure to inform defendant of his Miranda rights. State v. Mack, 207 Ga. App. 287, 427 S.E.2d 615 (1993).
No Miranda warnings were required before defendant made a statement, where it was made voluntarily, and was not made in response to police interrogation or while in police custody. Stevenson v. State, 264 Ga. 892, 453 S.E.2d 18 (1995).

REPETITION OF WARNINGS NOT REQUIRED. --The implied consent statute was properly implemented, where defendant was given the implied consent warnings when he was arrested for driving with a suspended license but was not again given the implied consent warnings after he took a breath test and was placed under arrest for driving under the influence. Parsons v. State, 190 Ga. App. 803, 380 S.E.2d 87 (1989).
Police officer was not required to again allow defendant to consider his options once he knew he had failed administered breath test by returning to him the form which he had previously reviewed, initialled and signed so as to indicate his desire for an additional test. State v. Hull, 210 Ga. App. 72, 435 S.E.2d 284 (1993).

NOTICE WAS TIMELY. --A two-hour delay before defendant was advised of his implied consent rights was not untimely because it was caused by a newly hired officer's call for assistance to confirm his determination that defendant was driving under the influence. Edge v. State, 226 Ga. App. 559, 487 S.E.2d 117 (1997).

DEFENDANT ADVISED OF OPTIONS. --Any failure by the Department of Transportation in complying with the reporting requirements of § 40-5-51 pertaining to suspension or revocation of operating privileges of nonresident motorists did not diminish the fact that former subsection (c), in effect at the time of the offense, evoked procedures at the time of defendant's arrest for immediate suspension of any person's driving privileges upon refusal to submit to the chemical test prescribed by subsection (a); consequently, since the trial transcript revealed that the deputy advised defendant at the time of arrest of his options pursuant to Georgia's implied consent law, there was no basis for excluding evidence of the results of the state-administered breath test. Anthony v. State, 211 Ga. App. 622, 441 S.E.2d 70 (1993), overruled on other grounds, State v. Coleman, 216 Ga. App. 598, 455 S.E.2d 604 (1995).

IMPLIED CONSENT NOTICE GIVEN BEFORE ARREST. --The required timing of the implied consent notice for a person who is involved in a traffic incident resulting in serious injuries or a fatality, and who is not arrested at that time for a violation of § 40-6-391 is: (a) law enforcement officers must administer chemical tests for alcohol and drugs as soon as possible, and (b) the implied consent notice must be given at the time such test is requested, which may or may not be at the time of actual testing. Joiner v. State, 239 Ga. App. 843, 522 S.E.2d 25 (1999).

WARNING READ TO TWO SUSPECTS AT THE SAME TIME. --Even though the arresting officer testified that he read implied consent warnings to defendant and the driver of another vehicle at the same time, where he also testified that he "independently" advised both suspects of their options before subjecting them to a breath test, the trial court did not err in failing to suppress the results of the test. Hilliard v. State, 216 Ga. App. 618, 455 S.E.2d 82 (1995).

WARNING TO COMMERCIAL DRIVER. --Notices advising defendant that if he refused testing he would be disqualified from operating a commercial motor vehicle for a minimum of one year were adequate, even though they did not advise him that refusal to submit to the tests could also disqualify him from operating a private motor vehicle. State v. Becker, 240 Ga. App. 267, 523 S.E.2d 98 (1999).

PARENT'S CONSENT TO MINOR'S BLOOD TEST NOT NECESSARY. --Fact that driver was a minor at the time his blood was taken did not require that driver's parents, after having been informed of his rights under the implied consent law, consent to the taking of his blood. Long v. State, 176 Ga. App. 89, 335 S.E.2d 587 (1985).

III. TESTING

AUTHORITY OF OFFICER TO DESIGNATE TYPE OF CHEMICAL TEST. --Section 40-5-67.1, read in pari materia with this section and § 40-6-392, authorizes a law enforcement officer to designate the appropriate chemical test to be administered -- breath, blood, urine, or other bodily substance -- for the detection of the source of impairment as suspected by the officer. Jordan v. State, 223 Ga. App. 176, 477 S.E.2d 583 (1996).

RIGHT TO AN ALTERNATIVE TEST. --Defendant's failure to complete a breath test without justification negated his right to an alternative test. Allen v. State, 229 Ga. App. 435, 494 S.E.2d 229 (1997).

BLOOD OR BREATH TESTING NOT PREREQUISITE TO REQUIREMENT FOR URINE SAMPLE. --Section 40-5-67.1, construed with this section and § 40-6-392, does not require blood or breath testing before an officer may require a suspect to provide a urine sample for analysis for the presence of alcohol, drugs, or marijuana. State v. Sumlin, 224 Ga. App. 205, 480 S.E.2d 260 (1997).

RETEST ALLOWED. --When, due to inadvertence, a breathalyzer test of a defendant's breath cannot be completed, and a retest is possible without inconveniencing the defendant and without delay, such a retest is not a violation of the defendant's rights and is not a basis for suppression of the results of the test. Montgomery v. State, 174 Ga. App. 95, 329 S.E.2d 166 (1985); Shadix v. State, 179 Ga. App. 644, 347 S.E.2d 298 (1986).

INDEPENDENT BLOOD TEST. --Trial court did not err in excluding defendant's testimony regarding an independent blood test made more than eight hours after the arrest. Allen v. State, 229 Ga. App. 435, 494 S.E.2d 229 (1997).

CHEMICAL TEST DESPITE ABSENCE OF PROBABLE CAUSE. --A chemical test may be requested under the implied consent statute even though the arresting officer lacks probable cause to arrest for substance-influenced driving, where the officer has at least reasonable grounds to believe that a violation of this statute has occurred. Davis v. State, 187 Ga. App. 517, 370 S.E.2d 779 (1988).
Results of a urine test were admissible in a prosecution for driving under the influence of methamphetamine, where the officer had reasonable grounds to arrest defendant based on the fact that his eyes were dilated and his inability to give the officer any explanation as to how or why he drove his vehicle into the rear of a truck. Martin v. State, 214 Ga. App. 614, 448 S.E.2d 471 (1994).

DEOXYRIBONUCLEIC ACID (
DNA) TESTING NOT AUTHORIZED. --Blood sample taken pursuant to the implied consent law could not be subject to deoxyribonucleic acid (DNA) testing. State v. Gerace, 210 Ga. App. 874, 437 S.E.2d 862 (1993).

IV. SERIOUS INJURY

ACCIDENT INVOLVING SERIOUS INJURY. --Officers' observation that there was a lot of blood at the accident scene and that injuries included disfigurement of the passenger's leg and swelling of the driver's ankle constituted sufficient evidence of "serious" injury so as to invoke the driver's implied consent to a blood-alcohol test. Lewis v. State, 215 Ga. App. 796, 452 S.E.2d 228 (1994).
Because the traffic accident in which defendant was involved resulted in a serious injury, defendant was deemed by operation of law, pursuant to this section to have given consent to a chemical test of his bodily substances for the presence of alcohol or any other drug. Stevenson v. State, 264 Ga. 892, 453 S.E.2d 18 (1995).
Absent an arrest, a person involved in an accident resulting in serious injuries or fatalities must be informed of his implied consent rights within a reasonable amount of time after the accident, as determined by the circumstances, and, when possible, before the administration of any state tests. Seith v. State, 225 Ga. App. 684, 484 S.E.2d 690 (1997).

NO NOTICE WHERE DRIVER WAS "OUT OF IT." --An officer's reliance on a nurse's statement that an injured driver was "out of it" was reasonable after the officer had observed medical personnel working around the driver, combined with his first impression that the driver was dead, thus authorizing the officer's failure to obtain consent for a chemical analysis of bodily fluids, and to advise of implied consent rights as required by § 40-6-392. Hill v. State, 208 Ga. App. 714, 431 S.E.2d 471 (1993).

A DISLOCATED SHOULDER WAS NOT A SERIOUS INJURY as defined by subsection (c) so as to invoke implied consent to blood and urine tests. Miller v. State, 219 Ga. App. 498, 466 S.E.2d 67 (1995).

ACCIDENT INVOLVING FATALITY. --In a case involving a fatality, an arrest prior to testing was not required to activate a driver's implied consent. Brown v. State, 218 Ga. App. 469, 462 S.E.2d 420 (1995).

V. ADMISSIBILITY

ADMISSION OF REFUSAL TO SUBMIT TO BLOOD-ALCOHOL TEST. --The admission of a refusal to submit to blood-alcohol chemical test does not violate the constitutional right against self-incrimination. Wessels v. State, 169 Ga. App. 246, 312 S.E.2d 361 (1983).
The court properly allowed into evidence defendant's refusal to take the state-administered breath test, even though he contended that he was injured and shaken by the accident and was, therefore, incapable of refusing. Hassell v. State, 212 Ga. App. 432, 442 S.E.2d 261 (1994).
A person is required to submit to a test to determine if the person is under the influence of alcohol or other drugs; however, a driver has the right to refuse to take a state administered test, subject to the mandate that exercise of the right of refusal shall be admissible in the driver's criminal trial. State v. Leviner, 213 Ga. App. 99, 443 S.E.2d 688 (1994).
Defendant's consent to testing in response to the implied consent warning was given with the understanding that it was to determine if she was under the influence for purposes of violations of § 40-6-391 and the test results could not be used to support a charge of possession of marijuana. State v. Lewis, 233 Ga. App. 390, 504 S.E.2d 242 (1998).

TESTIMONY AS TO OFFICER'S PRECISE WORDING NOT REQUIRED. --The trial court did not err in admitting into evidence the results of intoximeter test performed on defendant where the arresting officer could not recall the precise wording in which he gave defendant his implied consent warnings. Cheevers v. Clark, 214 Ga. App. 866, 449 S.E.2d 528 (1994).

CONSENT OBTAINED BY MISLEADING INFORMATION. --Where nonresident defendant's consent to a chemical breath test was based at least in part on an officer's statement that his refusal to take the test would result in a six-month suspension of his out-of-state driver's license, a penalty which the state was unauthorized to carry out, the defendant was deprived of making an informal choice under the implied consent law, and the test results were inadmissible. Deckard v. State, 210 Ga. App. 421, 436 S.E.2d 536 (1993).
In a prosecution for driving under the influence, where defendant was deprived by the totality of the inaccurate, misleading, and/or inapplicable information given to him by the arresting officer of making an informed choice under the implied consent statute, his refusal to consent to a urine test was rendered inadmissible. State v. Leviner, 213 Ga. App. 99, 443 S.E.2d 688 (1994).
Police officer's warning to nonresident defendant that "Under OCGA § 40-5-153 and this section, you will lose your privilege to operate a motor vehicle from six to twelve months should you refuse to submit to the designated State administered chemical test" omitted the crucial fact that refusal to take the test would affect his ability to drive "on the highways of this state." Thus, defendant was deprived of making an informed choice, and the test results were inadmissible; overruling, Anthony v. State, 211 Ga. App. 622, 441 S.E.2d 70 (1993) and State v. Reich, 210 Ga. App. 407, 436 S.E.2d 703 (1993). State v. Coleman, 216 Ga. App. 598, 455 S.E.2d 604 (1995).

TEST RESULTS ADMISSIBLE FOLLOWING IMPLIED CONSENT WARNING. --The implied consent warning properly advised the driver of the purposes for which his blood was to be tested, and the test results were thus admissible in a prosecution for driving with the presence of marijuana in the driver's blood. Radcliffe v. State, 234 Ga. App. 576, 507 S.E.2d 759 (1998).

OPINIONS OF THE ATTORNEY GENERAL

SUBSECTION (A) INAPPLICABLE TO LOCOMOTIVE ENGINEERS. --The provisions of the Georgia Implied Consent Act do not, by the terms of the Act, apply to locomotive engineers. Any attempt to construe the Act so as to apply to them is barred by federal law, which preempts state law in this area. 1993 Op. Att'y Gen. No. U93-10.

RESEARCH REFERENCES

AM. JUR. 2D. --7A Am. Jur. 2d, Automobiles and Highway Traffic, § 132 et seq.

ALR. --Mental incapacity as justifying refusal to submit to tests for driving while intoxicated, 76 ALR5th 597.

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, article, chapter or title.



 

HAWAII

 

MICHIE'S HAWAII REVISED STATUTES ANNOTATED
Copyright (c) 1999-2000 Matthew Bender & Company, Inc.
one of the LEXIS Publishing companies.
All rights reserved

*** ANNOTATIONS CURRENT THRU 2000 CUMULATIVE SUPPLEMENT ***
*** STATUTES CURRENT THRU THE 2000 2ND SPECIAL SESSION ***

DIVISION 5. CRIMES AND CRIMINAL PROCEEDINGS
TITLE 37. HAWAII PENAL CODE
CHAPTER 706. DISPOSITION OF CONVICTED DEFENDANTS
PART I. PRE-SENTENCE INVESTIGATION AND REPORT, AUTHORIZED DISPOSITION, AND CLASSES OF FELONIES

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

HRS § 706-603 (2000)
§ 706-603. Mental and medical examination; deoxyribonucleic acid collection


(1) As used in this section, unless the context otherwise requires:

"Conviction" means that a verdict has been rendered by a judge or jury, or a plea of guilty or nolo contendere has been accepted by the court.

"
DNA" means deoxyribonucleic acid.

"Licensed psychologist" means psychologists licensed under chapter 465 but also includes psychologists exempt from licensure under section 465-3(a)(3).

"Sexual offense" means an offense as defined in chapter 846E as a sexually violent offense or a criminal offense against a victim who is a minor.

"Violent offense" means murder, or attempted murder, in any degree.

(2) Before imposing sentence, the court may order a defendant who has been convicted of a felony or misdemeanor to submit to mental or other medical observation and examination for a period not exceeding sixty days or a longer period, not to exceed the length of permissible imprisonment, as the court determines to be necessary for the purpose. In addition thereto or in the alternative, the court may appoint one or more qualified psychiatrists, physicians, or licensed psychologists to make the examination. The examiner or examiners shall be appointed from a list of certified examiners as determined by the state department of health. The report of the examination shall be submitted to the court.

(3) After entry of a plea of guilty or no contest or return of a verdict of guilty, a defendant who has been convicted of a sexual or violent offense shall provide two samples of blood for
DNA analysis.

(4) A defendant who has been convicted of a sexual or violent offense and who is in custody at a jail, prison, hospital, school, or other institution shall provide two samples of blood for
DNA analysis. The person in charge of such an institution, or that person's designee, shall arrange for the sample to be collected and analyzed.

(5) A defendant who has been convicted of a sexual or violent offense and who is not in custody shall report in person to any police station in the county in which the defendant resides or is present to schedule an appointment to provide two samples of blood for
DNA analysis. A defendant required to report to a police station under this subsection shall do so within:

(a) Thirty days of July 20, 1998;

(b) Thirty days of conviction; or

(c) Thirty days after arrival in this State, if the defendant expects to be present in this State for a period exceeding thirty days.

(6) A defendant who has been charged with a sexual or violent offense and who has been found unfit to proceed or acquitted pursuant to chapter 704, or any state, federal, or military law similar to chapter 704 shall provide two samples of blood for
DNA analysis. The person in charge of the jail, prison, hospital, school, or other institution where the defendant is in custody, or that person's designee, shall arrange for the sample to be collected and analyzed. A defendant who is not in custody and who is required to provide blood under this subsection shall report in person to any police station in the county in which the defendant resides or is present to schedule an appointment to provide two samples of blood. A defendant required to report to a police station under this subsection shall do so within:

(a) Thirty days of July 20, 1998;

(b) Thirty days of the release following an acquittal or finding of unfitness to proceed under chapter 704; or any state, federal, or military law similar to chapter 704; or

(c) Thirty days after arrival in the State,
if the defendant resides or expects to be present in the State for a period exceeding thirty days.

(7) Blood withdrawn pursuant to this section shall be withdrawn only by a person authorized to withdraw blood under section 286-152. The results shall be recorded, preserved, and disseminated in a manner consistent with the requirements of chapter 846. A defendant who has already provided the necessary samples of blood pursuant to this section shall be relieved of any further requirement to provide blood for
DNA analysis, unless the court orders otherwise.

(8) In addition to any disposition authorized by chapter 706 or 853, a defendant convicted of a sexual or violent offense after July 20, 1998 may be ordered to pay a monetary assessment of $500 or the actual cost of the
DNA analysis, whichever is less. The court shall not order the defendant to pay the monetary assessment unless the defendant is or will be able to pay the monetary assessment. Notwithstanding any other law to the contrary, the assessment provided by this section shall be in addition to, and not in lieu of, and shall not be used to offset or reduce, any fine authorized or required by law. All assessments shall be paid into the DNA registry special fund established in subsection (9).

(9) There is established a special fund to be known as the
DNA registry special fund which shall be administered by the attorney general. The fund shall consist of:

(a) All assessments ordered pursuant to subsection (8);

(b) All other moneys received by the fund from any other source; and

(c) Interest earned on any moneys in the fund.
Moneys in the
DNA registry special fund shall be used for DNA collection, DNA testing, and related costs of recording, preserving, and disseminating DNA information pursuant to this section.

(10) Restitution to the victim of a sexual or violent crime shall be made before payment of the monetary assessment.

(11) Any person required to provide blood samples under this section who negligently or recklessly fails to comply shall be guilty of a misdemeanor; and any person who intentionally or knowingly fails to provide blood samples under this section shall be guilty of a class C felony.

HISTORY: L 1972, c 9, pt of § 1; am L 1973, c 179, § 24; am L 1974, c 54, § 4; am L 1979, c 3, § 4 and c 105, § 65; am L 1980, c 232, § 37; am L 1986, c 314, § 12; am L 1987, c 145, § 4; am L 1991, c 231, § 2; am L 1998, c 271, § 1

NOTES:
THE 1998 AMENDMENT, effective July 20, 1998, substituted "Mental and medical examination; deoxyribonucleic acid collection" for "Pre-sentence mental and medical examination" in the section title; added subsection (1); redesignated former subsection (a) as subsection (2), in the third sentence, substituted "examiner or examiners" for "three examiners" and "certified examiners" for "certified sanity examiners", and deleted the former last sentence, the definition of licensed psychologist; redesignated former subsection (b) as (3), deleted "the court shall order" following "guilty," substituted "a sexual or violent offense shall provide" for former provisions listing the offenses after which convicted defendants were required to provide saliva and blood samples, and deleted "the purpose of secretor status, blood type, and" following "blood for", and deleted the former last three sentences relating to collection and disposition of blood samples; deleted former subsection (c), relating to facilities where blood samples might be collected; and added paragraphs (4) through (11).

CASE NOTES

CITED in State v. Nobriga, 56 Haw. 75, 527 P.2d 1269 (1974) State v. Davis, 60 Haw. 100, 588 P.2d 409 (1978) State v. Kaohu, 4 Haw. App. 35, 658 P.2d 910 (1983) State v. Villeza, 85 Haw. 258, 942 P.2d 522 (1997).

RESEARCH REFERENCES

ALR4th.
Authentication of blood sample taken from human body for purposes other than determining blood alcohol content. 77 A.L.R.5th 201.

LEGAL PERIODICALS

HAWAII BAR JOURNAL.
Article, Comments and Questions About Mental Health Law in Hawaii, 13 Haw. B.J. 3 (1978).

USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, chapter, or title.



 

IDAHO

CODE OF CIVIL PROCEDURE
TITLE 9. EVIDENCE
CHAPTER 3. PUBLIC WRITINGS

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Idaho Code § 9-340C (2000)
§ 9-340C. Records exempt from disclosure -- Personnel records, personal information, health records, professional discipline


The following records are exempt from disclosure:

(1) Except as provided in this subsection, all personnel records of a current or former public official other than the public official's public service or employment history, classification, pay grade and step, longevity, gross salary and salary history, status, workplace and employing agency. All other personnel information relating to a public employee or applicant including, but not limited to, information regarding sex, race, marital status, birth date, home address and telephone number, applications, testing and scoring materials, grievances, correspondence and performance evaluations, shall not be disclosed to the public without the employee's or applicant's written consent. A public official or authorized representative may inspect and copy his personnel records, except for material used to screen and test for employment.

(2) Retired employees' and retired public officials' home addresses, home telephone numbers and other financial and nonfinancial membership records; active and inactive member financial and membership records and mortgage portfolio loan documents maintained by the public employee retirement system. Financial statements prepared by retirement system staff, funding agents and custodians concerning the investment of assets of the public employee retirement system of Idaho are not considered confidential under this chapter.

(3) Information and records submitted to the Idaho state lottery for the performance of background investigations of employees, lottery retailers and major procurement contractors; audit records of lottery retailers, vendors and major procurement contractors submitted to or performed by the Idaho state lottery; validation and security tests of the state lottery for lottery games; business records and information submitted pursuant to sections 67-7412(8) and (9) and 67-7421(8) and (9), Idaho Code, and such documents and information obtained and held for the purposes of lottery security and investigative action as determined by lottery rules unless the public interest in disclosure substantially outweighs the private need for protection from public disclosure.

(4) Records of a personal nature as follows:

(a) Records of personal debt filed with a public agency or independent public body corporate and politic pursuant to law;

(b) Personal bank records compiled by a public depositor for the purpose of public funds transactions conducted pursuant to law;

(c) Records of ownership of financial obligations and instruments of a public agency or independent public body corporate and politic, such as bonds, compiled by the public agency or independent public body corporate and politic pursuant to law;

(d) Records, with regard to the ownership of, or security interests in, registered public obligations;

(e) Vital statistics records.

(5) Information in an income or other tax return measured by items of income or sales, which is gathered by a public agency for the purpose of administering the tax, except such information to the extent disclosed in a written decision of the tax commission pursuant to a taxpayer protest of a deficiency determination by the tax commission, under the provisions of section 63-3045B, Idaho Code.

(6) Records of a personal nature related directly or indirectly to the application for and provision of statutory services rendered to persons applying for public care for the elderly, indigent, or mentally or physically handicapped, or participation in an environmental or a public health study, provided the provisions of this subsection making records exempt from disclosure shall not apply to the extent that such records or information contained in those records are necessary for a background check on an individual that is required by federal law regulating the sale of firearms, guns or ammunition.

(7) Employment security information and unemployment insurance benefit information, except that all interested parties may agree to waive the exemption.

(8) Any personal records, other than names, business addresses and business phone numbers, such as parentage, race, religion, sex, height, weight, tax identification and social security numbers, financial worth or medical condition submitted to any public agency or independent public body corporate and politic pursuant to a statutory requirement for licensing, certification, permit or bonding.

(9) Unless otherwise provided by agency rule, information obtained as part of an inquiry into a person's fitness to be granted or retain a license, certificate, permit, privilege, commission or position, private association peer review committee records authorized in title 54, Idaho Code. Any agency which has records exempt from disclosure under the provisions of this subsection shall annually make available a statistical summary of the number and types of matters considered and their disposition.

(10) The records, findings, determinations and decisions of any prelitigation screening panel formed under chapters 10 and 23, title 6, Idaho Code.

(11) Complaints received by the board of medicine and investigations and informal proceedings, including informal proceedings of any committee of the board of medicine, pursuant to chapter 18, title 54, Idaho Code, and rules adopted thereunder.

(12) Records of the department of health and welfare or a public health district that identify a person infected with a reportable disease.

(13) Records of hospital care, medical records, including prescriptions, drug orders, records or any other prescription information that specifically identifies an individual patient, prescription records maintained by the board of pharmacy under section 37-2730A, Idaho Code, records of psychiatric care or treatment and professional counseling records relating to an individual's condition, diagnosis, care or treatment, provided the provisions of this subsection making records exempt from disclosure shall not apply to the extent that such records or information contained in those records are necessary for a background check on an individual that is required by federal law regulating the sale of firearms, guns or ammunition.

(14) Information collected pursuant to the directory of new hires act, chapter 16, title 72, Idaho Code.

(15) Personal information contained in motor vehicle and driver records that is exempt from disclosure under the provisions of chapter 2, title 49, Idaho Code.

(16) Records of the financial status of prisoners pursuant to subsection (2) of section 20-607, Idaho Code.

(17) Records of the Idaho state police or department of correction received or maintained pursuant to section 19-5514, Idaho Code, relating to
DNA databases and databanks.

(18) Records of the department of health and welfare relating to a survey, resurvey or complaint investigation of a licensed nursing facility shall be exempt from disclosure. Such records shall, however, be subject to disclosure as public records as soon as the facility in question has received the report, and no later than the fourteenth day following the date that department of health and welfare representatives officially exit the facility pursuant to federal regulations. Provided however, that for purposes of confidentiality, no record shall be released under this section which specifically identifies any nursing facility resident.

(19) Records and information contained in the registry of immunizations against childhood diseases maintained in the department of health and welfare, including information disseminated to others from the registry by the department of health and welfare.

(20) Records of the Idaho housing and finance association (IHFA) relating to the following:

(a) Records containing personal financial, family, health or similar personal information submitted to or otherwise obtained by the IHFA;

(b) Records submitted to or otherwise obtained by the IHFA with regard to obtaining and servicing mortgage loans and all records relating to the review, approval or rejection by the IHFA of said loans;

(c) Mortgage portfolio loan documents;

(d) Records of a current or former employee other than the employee's duration of employment with the association, position held and location of employment. This exemption from disclosure does not include the contracts of employment or any remuneration, including reimbursement of expenses, of the executive director, executive officers or commissioners of the association. All other personnel information relating to an association employee or applicant including, but not limited to, information regarding sex, race, marital status, birth date, home address and telephone number, applications, testing and scoring materials, grievances, correspondence, retirement plan information and performance evaluations, shall not be disclosed to the public without the employee's or applicant's written consent. An employee or authorized representative may inspect and copy that employee's personnel records, except for material used to screen and test for employment or material not subject to disclosure elsewhere in the Idaho public records act.

[(21)](20) Records of the department of health and welfare related to child support services in cases in which there is reasonable evidence of domestic violence, as defined in chapter 63, title 39, Idaho Code, that can be used to locate any individuals in the child support case except in response to a court order.

HISTORY: I.C., § 9-340C, as added by 1999, ch. 30, § 4, p. 41; am. 1999, ch. 347, § 2, p. 926; am. 1999, ch. 395, § 3, p. 1095; am. 2000, ch. 58, § 1, p. 122; am. 2000, ch. 189, § 3, p. 465; am. 2000, ch. 194, § 2, p. 479; am. 2000, ch. 294, § 1, p. 1011; am. 2000, ch. 332, § 6, p. 1112; am. 2000, ch. 342, § 5, p. 1146; am. 2000, ch. 469, § 20, p. 1450.

NOTES:
COMPILER'S NOTES. This section was enacted by S.L. 1999, ch. 30, § 4, effective July 1, 1999 which was then amended by two 1999 acts, ch. 347, § 2, and ch. 395, § 3, both effective July 1, 1999, which do not conflict and have been compiled together.
The amendment by ch. 347 added subsection (18) [(19)].
The amendment by ch. 395 in subsection (10), substituted "chapters 10 and 23" for "chapter 10"; and added subsection (18).
This section was amended by seven 2000 acts -- ch. 58, § 1, effective July 1, 2000, ch. 189, § 3, effective July 1, 2000, ch. 194, § 2, effective April 4, 2000, ch. 294, § 1, effective July 1, 2000, ch. 332, § 6, effective July 1, 2000, ch. 342, § 5, effective July 1, 2000, and ch. 469, § 20, effective July 1, 2000, which contained a minor conflict that has been resolved by the Code Commission and have been compiled together.
The 2000 amendment by ch. 58, § 1, in subdivision (18), substituted "as soon as the facility in question has receivedd the report, and no later than" for "on and after"; and redesignated former subdivision [19](18) as present subdivision (19).
The 2000 amendment by ch. 189, § 3, in subdivision (13), inserted "including prescriptions, drug orders, records or any other prescription information that specifically identifies an individual patient," preceding "records of psychiatric care"; and redesignated former subdivision [19](18) as present subdivision (19).
The 2000 amendment by ch. 194, § 2, in subdivision (13), inserted "prescription records maintained by the board of pharmacy under section 37-2730A, Idaho Code," preceding "records of psychiatric care or treatment"; and redesignated former subdivision [19](18) as present subdivision (19); and made minor stylistic changes.
The 2000 amendment by ch. 294, § 1 redesignated former subdivision [19](18) as present subdivision (19); and added subdivision (20) (now [(21)](20)); and made minor stylistic changes.
The 2000 amendment by ch. 332, § 6, rewrote subdivision (11) which formerly read: "Board of professional discipline reprimands by informal admonition pursuant to subsection (6)(f) of section 54-1806A, Idaho Code."; and redesignated former subdivision [19](18) as present subdivision (19); and made minor stylistic changes.
The 2000 amendment by ch. 342, § 5, in subdivision (4)(a), inserted "or independent public body corporate and politic" preceding "pursuant to law", in subdivision (4)(c), inserted "'or independent public body corporate and politic" preceding "such as bonds", inserted "or independent public body corporate and politic" preceding "pursuant to law"; in subdivision (8), inserted "or independent public body corporate and politic" preceding "pursuant to a statutory"; redesignated former subdivision [19](18) as present subdivision (19); and added subdivision (20); and made minor stylistic changes.
The 2000 amendment by ch. 469, § 20, in subdivision (17), substituted "Idaho state police" for "department of law enforcement"; and redesignated former subdivision [19](18) as present subdivision (19).
Former § 9-340C, which comprised I.C., § 6-311B, as added by 1974, ch. 308, § 6, p. 1803, was repealed by S.L. 1996, ch. 169, § 2.
The bracketed subdivision designation [(21)] was inserted by the compiler.
Sections 1 and 3 of S.L. 1999, ch. 347, are compiled as §§ 39-4803 and 39-4804, respectively.
Section 2 of S.L. 1999, ch. 395, is compiled as § 54-1604.
Sections 1 and 3 of S.L. 2000, ch. 194, are compiled as §§ 37-2730A and 9-340G, respectively.
Section 5 of S.L. 2000, ch. 332, is compiled as § 54-1841.
Section 21 of S.L. 2000, ch. 469, is compiled as § 18-915.
Section 7 of S.L. 2000, ch. 332, provides: "This act shall be in full force and effect on and after July 1, 2000, and the Board of Medicine is directed to begin rulemaking pursuant to Chapter 52, Title 67, Idaho Code, as required by Section 54-1806(2), Idaho Code. Until such rules are final, the Idaho Rules of Administrative Procedure of the Attorney General to the extent they are not inconsistent with rules already adopted by the Board of Medicine, shall be the rules of practice and procedure for the Board of Medicine."

SEC. TO SEC. REF. This section is referred to in §§ 56-209j, 59-1316.

PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 6. ARREST, BY WHOM AND HOW MADE

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Idaho Code § 19-625 (2000)
STATUS: CONSULT SLIP LAWS CITED BELOW FOR RECENT CHANGES TO THIS DOCUMENT
LEXSEE 2001 Ida. ALS 142 -- See section 3.

§ 19-625. Detention for obtaining evidence of identifying physical characteristics


(1) A peace officer who is engaged, within the scope of his authority, in the investigation of an alleged criminal offense which is a felony may make written application upon oath or affirmation to a judge of any district court, or magistrates division thereof, for an order authorizing the temporary detention, for the purpose of obtaining evidence of identifying physical characteristics, of an identified or particularly described individual residing in or found in the jurisdiction over which the judicial officer presides. The order shall require the presence of the identified or particularly described individual at such time and place as the court shall direct for obtaining the identifying physical characteristic evidence. Such order may be issued by the judicial officer upon a showing under oath of all the following:

(A) Probable cause for belief that a specifically described criminal offense which is a felony has been committed.

(B) Reasonable grounds exist, which may or may not amount to probable cause, to believe that the identified or particularly described individual committed the criminal offense.

(C) Procurement of evidence of identifying physical characteristics from the identified or particularly described individual may contribute to the identification of the individual who committed such offense.

(D) Such evidence cannot otherwise be obtained by the investigating officer.

(2) Any order issued pursuant to the provisions of this section shall specify the following:

(A) The alleged criminal offense which is the subject of the application.

(B) The specific type of identifying physical characteristic evidence which is sought.

(C) The relevance of such evidence to the particular investigation.

(D) The identity or description of the individual who may be detained for obtaining such evidence.

(E) The name and official status of the investigative officer authorized to effectuate such detention and obtain such evidence.

(F) The place at which the obtaining of such evidence shall be effectuated.

(G) The time that such evidence shall be taken except that no person may be detained for a period of more than three (3) hours for the purpose of taking such evidence.

(H) That the individual so identified or described shall have the right to legal counsel during the detention when such evidence is obtained and if he is unable to afford private counsel an attorney shall be provided at public expense as provided by section 19-852.

(I) That the individual will be under no legal obligation to submit to any interrogation or to make any statement during the period of his appearance unless sound of voice identification is required.

(J) The period of time, not exceeding ten (10) days, during which the order shall continue in force and effect. If the order is not executed within ten (10) days, a new order may be issued, pursuant to the provisions of this section.

(3) The order issued pursuant to this section shall be returned to the court not later than fifteen (15) days after its date of issuance and shall be accompanied by a sworn statement indicating how and when the evidence was taken and the type of evidence taken. The court shall give to the person from whom such evidence was taken a copy of the order and a copy of the sworn statement indicating what type of evidence was taken, if any.

(4) For the purposes of this section, "Identifying physical characteristics" shall mean the fingerprints, palm prints, footprints, measurements, handwriting, handprinting, sound of voice, blood samples, urine samples, saliva samples, hair samples, comparative personal appearance, or photographs of an individual.

(5) Any evidence obtained pursuant to this section shall be returned to the individual from whom it was taken if a criminal action charging the offense described pursuant to subsection (1) (A) hereof is not filed against such individual within thirty (30) days after obtaining the same.

HISTORY: I.C., § 19-625, as added by 1972, ch. 116, § 1, p. 230.

CITED IN: State v. Hoisington, 104 Idaho 153, 657 P.2d 17 (1983).

ANALYSIS
Applicability.
Construction.
Ineffective assistance of counsel.
Invalid Detention Warrant.
Right to Attorney.

APPLICABILITY.
This section deals only with the detention of an individual for purposes of obtaining identifying physical evidence and had no bearing on whether or not probable cause existed to issue a search warrant for the taking of blood and urine samples. Hopper v. Hayes, 573 F. Supp. 1368 (D. Idaho 1983).
A warrant of detention may be issued by a judge where the requirements of this section are met and the physical evidence sought will materially aid in the investigation of an Idaho felony or appears reasonably calculated to lead to the discovery of information that will do so. State v. Spor, -- Idaho --, 1 P.3d 816 (Ct. App. 2000).

CONSTRUCTION.
This section authorizes a limited intrusion into a person's privacy on grounds which may not amount to probable cause for arrest; when the authority granted by a detention warrant is exceeded, the permissibility of the intrusion is determined by the same standard as a warrantless arrest. State v. Cootz, 110 Idaho 807, 718 P.2d 1245 (Ct. App. 1986).
No language in this section limits the issuance of a warrant of detention to obtaining evidence of physical characteristics directly related to the investigation of criminal activity in Idaho, and although the
DNA obtained from defendant's blood was not directly related to his criminal conduct in Idaho, it was directly relevant to confirming the paternity of a child conceived in Washington during intercourse with a minor child who alleged that she had a sexual relationship with the defendant a year earlier in Idaho. Therefore, the evidence was relevant to establishing the victim's credibility under the rules of evidence, as well as a common plan to sexually exploit an Idaho victim. State v. Spor, -- Idaho --, 1 P.3d 816 (Ct. App. 2000).

INEFFECTIVE ASSISTANCE OF COUNSEL.
Where defendant after being told about lineup requested to speak with an attorney whereupon the public defender was called and after detention order was read to the public defender he spoke to defendant telling him to cooperate in the lineup but not to answer any questions, it was more appropriate to apply a rule requiring the defendant to show that prejudice resulted from the alleged ineffectiveness of his counsel in not attending the lineup, rather than to apply a per se rule that prejudice must be presumed to exist when counsel fails to attend a preindictment lineup. Boman v. State, 129 Idaho 520, 927 P.2d 910 (Ct. App. 1996).

INVALID DETENTION WARRANT.
Even if the detention warrant is invalid, it, like an arrest warrant that turns out to be defective, cannot invalidate an arrest where the police possess probable cause to make the arrest. Therefore, where the officers had reasonable cause to arrest the defendant at the time he was detained, and they also had authority, under subdivision 3. of § 19-603, to make a warrantless arrest, the arrest was valid, and the roll of money found in the defendant's pocket was lawfully acquired in a search incident to that arrest. State v. Cootz, 110 Idaho 807, 718 P.2d 1245 (Ct. App. 1986).

RIGHT TO ATTORNEY.
It was improper for the police officer to indicate in a conversation with the defendant that since the defendant was being held under the detention warrant, and not under arrest, he was not entitled to an attorney. State v. Cootz, 110 Idaho 807, 718 P.2d 1245 (Ct. App. 1986).



PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 6. ARREST, BY WHOM AND HOW MADE

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Idaho Code § 19-625 (2000)
STATUS: CONSULT SLIP LAWS CITED BELOW FOR RECENT CHANGES TO THIS DOCUMENT
LEXSEE 2001 Ida. ALS 142 -- See section 3.

§ 19-625. Detention for obtaining evidence of identifying physical characteristics


(1) A peace officer who is engaged, within the scope of his authority, in the investigation of an alleged criminal offense which is a felony may make written application upon oath or affirmation to a judge of any district court, or magistrates division thereof, for an order authorizing the temporary detention, for the purpose of obtaining evidence of identifying physical characteristics, of an identified or particularly described individual residing in or found in the jurisdiction over which the judicial officer presides. The order shall require the presence of the identified or particularly described individual at such time and place as the court shall direct for obtaining the identifying physical characteristic evidence. Such order may be issued by the judicial officer upon a showing under oath of all the following:

(A) Probable cause for belief that a specifically described criminal offense which is a felony has been committed.

(B) Reasonable grounds exist, which may or may not amount to probable cause, to believe that the identified or particularly described individual committed the criminal offense.

(C) Procurement of evidence of identifying physical characteristics from the identified or particularly described individual may contribute to the identification of the individual who committed such offense.

(D) Such evidence cannot otherwise be obtained by the investigating officer.

(2) Any order issued pursuant to the provisions of this section shall specify the following:

(A) The alleged criminal offense which is the subject of the application.

(B) The specific type of identifying physical characteristic evidence which is sought.

(C) The relevance of such evidence to the particular investigation.

(D) The identity or description of the individual who may be detained for obtaining such evidence.

(E) The name and official status of the investigative officer authorized to effectuate such detention and obtain such evidence.

(F) The place at which the obtaining of such evidence shall be effectuated.

(G) The time that such evidence shall be taken except that no person may be detained for a period of more than three (3) hours for the purpose of taking such evidence.

(H) That the individual so identified or described shall have the right to legal counsel during the detention when such evidence is obtained and if he is unable to afford private counsel an attorney shall be provided at public expense as provided by section 19-852.

(I) That the individual will be under no legal obligation to submit to any interrogation or to make any statement during the period of his appearance unless sound of voice identification is required.

(J) The period of time, not exceeding ten (10) days, during which the order shall continue in force and effect. If the order is not executed within ten (10) days, a new order may be issued, pursuant to the provisions of this section.

(3) The order issued pursuant to this section shall be returned to the court not later than fifteen (15) days after its date of issuance and shall be accompanied by a sworn statement indicating how and when the evidence was taken and the type of evidence taken. The court shall give to the person from whom such evidence was taken a copy of the order and a copy of the sworn statement indicating what type of evidence was taken, if any.

(4) For the purposes of this section, "Identifying physical characteristics" shall mean the fingerprints, palm prints, footprints, measurements, handwriting, handprinting, sound of voice, blood samples, urine samples, saliva samples, hair samples, comparative personal appearance, or photographs of an individual.

(5) Any evidence obtained pursuant to this section shall be returned to the individual from whom it was taken if a criminal action charging the offense described pursuant to subsection (1) (A) hereof is not filed against such individual within thirty (30) days after obtaining the same.

HISTORY: I.C., § 19-625, as added by 1972, ch. 116, § 1, p. 230.

CITED IN: State v. Hoisington, 104 Idaho 153, 657 P.2d 17 (1983).

ANALYSIS
Applicability.
Construction.
Ineffective assistance of counsel.
Invalid Detention Warrant.
Right to Attorney.

APPLICABILITY.
This section deals only with the detention of an individual for purposes of obtaining identifying physical evidence and had no bearing on whether or not probable cause existed to issue a search warrant for the taking of blood and urine samples. Hopper v. Hayes, 573 F. Supp. 1368 (D. Idaho 1983).
A warrant of detention may be issued by a judge where the requirements of this section are met and the physical evidence sought will materially aid in the investigation of an Idaho felony or appears reasonably calculated to lead to the discovery of information that will do so. State v. Spor, -- Idaho --, 1 P.3d 816 (Ct. App. 2000).

CONSTRUCTION.
This section authorizes a limited intrusion into a person's privacy on grounds which may not amount to probable cause for arrest; when the authority granted by a detention warrant is exceeded, the permissibility of the intrusion is determined by the same standard as a warrantless arrest. State v. Cootz, 110 Idaho 807, 718 P.2d 1245 (Ct. App. 1986).
No language in this section limits the issuance of a warrant of detention to obtaining evidence of physical characteristics directly related to the investigation of criminal activity in Idaho, and although the
DNA obtained from defendant's blood was not directly related to his criminal conduct in Idaho, it was directly relevant to confirming the paternity of a child conceived in Washington during intercourse with a minor child who alleged that she had a sexual relationship with the defendant a year earlier in Idaho. Therefore, the evidence was relevant to establishing the victim's credibility under the rules of evidence, as well as a common plan to sexually exploit an Idaho victim. State v. Spor, -- Idaho --, 1 P.3d 816 (Ct. App. 2000).

INEFFECTIVE ASSISTANCE OF COUNSEL.
Where defendant after being told about lineup requested to speak with an attorney whereupon the public defender was called and after detention order was read to the public defender he spoke to defendant telling him to cooperate in the lineup but not to answer any questions, it was more appropriate to apply a rule requiring the defendant to show that prejudice resulted from the alleged ineffectiveness of his counsel in not attending the lineup, rather than to apply a per se rule that prejudice must be presumed to exist when counsel fails to attend a preindictment lineup. Boman v. State, 129 Idaho 520, 927 P.2d 910 (Ct. App. 1996).

INVALID DETENTION WARRANT.
Even if the detention warrant is invalid, it, like an arrest warrant that turns out to be defective, cannot invalidate an arrest where the police possess probable cause to make the arrest. Therefore, where the officers had reasonable cause to arrest the defendant at the time he was detained, and they also had authority, under subdivision 3. of § 19-603, to make a warrantless arrest, the arrest was valid, and the roll of money found in the defendant's pocket was lawfully acquired in a search incident to that arrest. State v. Cootz, 110 Idaho 807, 718 P.2d 1245 (Ct. App. 1986).

RIGHT TO ATTORNEY.
It was improper for the police officer to indicate in a conversation with the defendant that since the defendant was being held under the detention warrant, and not under arrest, he was not entitled to an attorney. State v. Cootz, 110 Idaho 807, 718 P.2d 1245 (Ct. App. 1986).




PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Idaho Code § 19-5502 (2000)
§ 19-5502. Definitions


(1) "CODIS" means the federal bureau of investigation's combined
DNA index system that allows the storage and exchange of DNA records submitted by state and local forensic laboratories.

(2) "Director" means the director of the Idaho state police.

(3) "
DNA" means deoxyribonucleic acid.

(4) "
DNA profile" means the list of one (1) or more genetic types determined for an individual based on variations in DNA sequence.

(5) "
DNA record" means DNA information stored in the statewide DNA database system of the bureau of forensic services or CODIS and includes information commonly referred to as a DNA profile.

(6) "
DNA sample" means a body fluid or tissue sample provided by any person convicted of a qualifying sex crime or violent crime or any body fluid or tissue sample submitted to the statewide DNA database system for analysis pursuant to a criminal investigation or missing person investigation.

(7) "Forensic laboratory" means the bureau of forensic services of the Idaho state police.

(8) "Law enforcement purpose" means to assist federal, state or local criminal justice and law enforcement agencies within and outside the state of Idaho in identification or prosecution of sex crimes, violent crimes or other crimes and the identification and location of missing and unidentified persons.

(9) "Statewide
DNA databank" means the state repository of DNA samples collected under this chapter.

(10) "Statewide
DNA database system" means the DNA record system administered by the Idaho bureau of forensic services.

HISTORY: I.C., § 19-5502, as added by 1997, ch. 120, § 1, p. 341; am. 2000, ch. 469, § 45, p. 1450.

NOTES:
COMPILER'S NOTES. Section 44 of S.L. 2000, ch. 469, is compiled as § 19-5402.



*** THIS SECTION IS CURRENT THROUGH THE 2000 CUMULATIVE SUPPLEMENT ***
(2ND REGULAR SESSION OF THE 55TH LEGISLATURE)
ANNOTATIONS CURRENT THROUGH THE 2001 ACS #2

PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Idaho Code § 19-5503 (2000)
§ 19-5503. Responsibility for managing
DNA programs -- Bureau of forensic services


The Idaho state police through the bureau of forensic services shall be responsible for the policy management and administration of the state's database and databank identification program. The bureau of forensic services shall be responsible for liaison with the FBI regarding the state's participation in the CODIS program.

HISTORY: I.C., § 19-5503, as added by 1997, ch. 120, § 1, p. 341; am. 2000, ch. 469, § 46, p. 1450.



PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Idaho Code § 19-5504 (2000)
§ 19-5504. Implementation of the chapter -- Rules


The Idaho state police, in consultation with the Idaho attorney general's office, the Idaho department of correction, the Idaho chiefs of police association, the Idaho state sheriff's association, and the Idaho prosecuting attorney's association, shall adopt policies, procedures and rules for implementation of this chapter, and ensure that
DNA samples are collected from qualifying offenders in a timely manner. The director may designate additional persons and organizations to provide consultation in implementing the provisions of this chapter.

HISTORY: I.C., § 19-5504, as added by 1997, ch. 120, § 1, p. 341; am. 2000, ch. 469, § 47, p. 1450.

NOTES:
COMPILER'S NOTES. Section 48 of S.L. 2000, ch. 469, is compiled as § 19-5506.

PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Idaho Code § 19-5505 (2000)
§ 19-5505. Use of the state databank and database -- Duties of bureau of forensic services


(1) The bureau of forensic services shall perform or contract for
DNA analysis for law enforcement purposes.

(2) The bureau of forensic services shall serve as a repository for
DNA samples collected and shall analyze samples, or contract for analysis, and shall store, compile, correlate, maintain and use DNA profiles and records related to:

(a) Forensic casework;

(b) Offenders required to provide samples under this chapter;

(c) The identification and location of missing persons; and

(d) Anonymous
DNA records used for research or quality control.

(3) A match between evidence
DNA samples from a criminal investigation and DNA samples from a state or federal database may be used to sustain probable cause for the arrest of a suspect upon application for a warrant.

(4) The
DNA profile may also be used at trial as evidence, provided that the evidence is otherwise admissible at trial. The DNA profile may also be used in developing statistical calculations of populations frequencies.

HISTORY: I.C., § 19-5505, as added by 1997, ch. 120, § 1, p. 341; am. 1998, ch. 123, § 2, p. 456.

NOTES:
COMPILER'S NOTES. Section 1 of S.L. 1998, ch. 123 changed the heading of chapter 55, title 19.
Section 3 of S.L. 1998, ch. 123 is compiled as § 19-5507.



 

PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Idaho Code § 19-5506 (2000)
§ 19-5506. Scope of law -- Offenders subject to sample collection -- Early collection of samples


(1) Any person, including any juvenile tried as an adult, who is convicted of, or pleads guilty to, any of the following crimes, regardless of the form of judgment or withheld judgment, and regardless of the sentence imposed or disposition rendered, shall be required to provide to the Idaho state police, a
DNA sample and a right thumbprint impression:

(a) Aggravated arson (section 18-805, Idaho Code);

(b) Aggravated assault (section 18-905, Idaho Code);

(c) Aggravated battery (section 18-907, Idaho Code);

(d) Assault with the intent to commit a serious felony (section 18-909, Idaho Code);

(e) Battery with the intent to commit a serious felony (section 18-911, Idaho Code);

(f) Injury to a child (section 18-1501(1), Idaho Code);

(g) Sexual abuse of a child under the age of sixteen years (section 18-1506, Idaho Code);

(h) Possession of sexually exploitive material for other than a commercial purpose (section 18-1507A, Idaho Code);

(i) Lewd conduct with minor child under sixteen (section 18-1508, Idaho Code);

(j) Sexual battery of a minor child sixteen or seventeen years of age (section 18-1508A, Idaho Code);

(k) Murder, any degree (sections 18-4001 and 18-4003, Idaho Code);

(
l ) Manslaughter (section 18-4006(1) or (2), Idaho Code);

(m) Kidnapping, any degree (sections 18-4501 and 18-4502, Idaho Code);

(n) Mayhem (section 18-5001, Idaho Code);

(o) Rape (section 18-6101, Idaho Code);

(p) Robbery (section 18-6501, Idaho Code);

(q) Incest (section 18-6602, Idaho Code);

(r) Crime against nature (section 18-6605, Idaho Code);

(s) Forcible sexual penetration (section 18-6608, Idaho Code);

(t) Racketeering (section 18-7804, Idaho Code);

(u) Transfer of body fluid which may contain the HIV virus (section 39-608, Idaho Code);

(v) Failure to register as sex offender (sections 18-8304 and 18-8308, Idaho Code).

(2) In addition to those crimes enumerated in subsection (1) of this section, any person, including any juvenile tried as an adult, who is convicted for an attempt to commit any of the following crimes, regardless of the form of judgment or withheld judgment, and regardless of the sentence imposed or disposition rendered, shall be required to provide to the Idaho state police, a
DNA sample and a right thumbprint impression:

(a) Aggravated arson (section 18-805, Idaho Code);

(b) Sexual abuse of a child under the age of sixteen years (section 18-1506, Idaho Code);

(c) Injury to a child (section 18-1501(1), Idaho Code);

(d) Lewd conduct with minor child under sixteen (section 18-1508, Idaho Code);

(e) Sexual battery of a minor child sixteen or seventeen years of age (section 18-1508A, Idaho Code);

(f) Murder, any degree (sections 18-4001 and 18-4003, Idaho Code);

(g) Kidnapping, any degree (sections 18-4501 and 18-4502, Idaho Code);

(h) Mayhem (section 18-5001, Idaho Code);

(i) Rape (section 18-6101, Idaho Code);

(j) Robbery (section 18-6501, Idaho Code);

(k) Incest (section 18-6602, Idaho Code);

(
l ) Crime against nature (section 18-6605, Idaho Code);

(m) Forcible sexual penetration (section 18-6608, Idaho Code);

(n) Transfer of body fluid which may contain the HIV virus (section 39-608, Idaho Code).

(3) This chapter's requirements for submission to tests and procedures for obtaining a
DNA sample and thumbprint impression from the persons described above are mandatory and apply to those persons convicted of such crimes covered in this chapter prior to its effective date, and who, as a result of the offense, are incarcerated in a county jail facility or a penal facility or are under probation or parole supervision after the effective date of this chapter.

(4) The collection of samples and impressions specified in this chapter are required regardless of whether the person previously has supplied a
DNA sample to law enforcement agencies in any other jurisdiction.

(5) The requirements of this chapter are mandatory and apply regardless of whether a court advises a person that samples and impressions must be provided to the databank and database as a condition of probation or parole.

(6) Persons who have been sentenced to death, or life without the possibility of parole, or to any life or indeterminate term are not exempt from the requirements of this chapter.

HISTORY: I.C., § 19-5506, as added by 1997, ch. 120, § 1, p. 341; am.2000, ch. 469, § 48, p. 1450.





IDAHO 56TH IDAHO LEGISLATURE -- FIRST REGULAR SESSION

CHAPTER NO. 142

HOUSE BILL NO. 290

2001 Ida. ALS 142; 2001 Idaho Sess. Laws 142; 2001 Ida. Ch. 142; 2001 Ida. HB 290
SYNOPSIS: AN ACT RELATING TO CRIMINAL PROCEDURE; AMENDING SECTION 19-401, IDAHO CODE, TO PROVIDE THAT THERE IS NO LIMITATION OF THE TIME WITHIN WHICH PROSECUTIONS FOR RAPE MUST BE COMMENCED; AMENDING SECTION 19-402, IDAHO CODE, TO PROVIDE THAT CERTAIN TIME LIMITATIONS IN WHICH PROSECUTIONS MUST BE COMMENCED DO NOT APPLY TO CRIMES OF RAPE; AMENDING SECTION 19-625, IDAHO CODE, TO STRIKE THE PROVISION REQUIRING THE RETURN OF EVIDENCE AND TO MAKE TECHNICAL CORRECTIONS; DECLARING AN EMERGENCY AND PROVIDING RETROACTIVE APPLICATION.

NOTICE:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]
[D> Text within these symbols is deleted <D]

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Be It Enacted by the Legislature of the State of Idaho:

[*1] SECTION 1. That Section 19-401, Idaho Code, be, and the same is hereby amended to read as follows:

19-401. PROSECUTIONS FOR MURDER [A> , <A] [D> OR <D] VOLUNTARY MANSLAUGHTER [A> OR RAPE <A] . There is no limitation of time within which a prosecution for murder [A> , <A] [D> or <D] voluntary manslaughter [A> , OR RAPE PURSUANT TO SECTION 18-6101 2., 3., 4. OR 5., OR SECTION 18-6108, IDAHO CODE, <A] must be commenced. They may be commenced at any time after the death [A> OR RAPE <A] of the person killed [A> OR RAPED <A] .

[*2] SECTION 2. That Section 19-402, Idaho Code, be, and the same is hereby amended to read as follows:

19-402. COMMENCEMENT OF PROSECUTIONS FOR CRIMES AGAINST CHILDREN AND OTHER FELONIES. (1) A prosecution for any felony other than murder, voluntary manslaughter [A> , RAPE PURSUANT TO SECTION 18-6101 2., 3., 4. OR 5., OR SECTION 18-6108, IDAHO CODE, <A] or any felony committed upon or against a minor child must be commenced by the filing of the complaint or the finding of an indictment within five (5) years after its commission. Except as provided in subsection (2) of this section, a prosecution for any felony committed upon or against a minor child must be commenced within five (5) years after the commission of the offense by the filing of the complaint or a finding of an indictment.

(2) A prosecution under section 18-1506 or 18-1508, Idaho Code, must be commenced within five (5) years after the date the child reaches eighteen (18) years of age.

(3) A prosecution under section 18-1506A, Idaho Code, must be commenced within three (3) years after the date of initial disclosure by the victim.

[*3] SECTION 3. That Section 19-625, Idaho Code, be, and the same is hereby amended to read as follows:

19-625. DETENTION FOR OBTAINING EVIDENCE OF IDENTIFYING PHYSICAL CHARACTERISTICS. (1) A peace officer who is engaged, within the scope of his authority, in the investigation of an alleged criminal offense which is a felony may make written application upon oath or affirmation to a judge of any district court, or magistrates division thereof, for an order authorizing the temporary detention, for the purpose of obtaining evidence of identifying physical characteristics, of an identified or particularly described individual residing in or found in the jurisdiction over which the judicial officer presides. The order shall require the presence of the identified or particularly described individual at such time and place as the court shall direct for obtaining the identifying physical characteristic evidence. Such order may be issued by the judicial officer upon a showing under oath of all the following:

(A) Probable cause for belief that a specifically described criminal offense which is a felony has been committed.

(B) Reasonable grounds exist, which may or may not amount to probable cause, to believe that the identified or particularly described individual committed the criminal offense.

(C) Procurement of evidence of identifying physical characteristics from the identified or particularly described individual may contribute to the identification of the individual who committed such offense.

(D) Such evidence cannot otherwise be obtained by the investigating officer.

(2) Any order issued pursuant to the provisions of this section shall specify the following:

(A) The alleged criminal offense which is the subject of the application.

(B) The specific type of identifying physical characteristic evidence which is sought.

(C) The relevance of such evidence to the particular investigation.

(D) The identity or description of the individual who may be detained for obtaining such evidence.

(E) The name and official status of the investigative officer authorized to effectuate such detention and obtain such evidence.

(F) The place at which the obtaining of such evidence shall be effectuated.

(G) The time that such evidence shall be taken except that no person may be detained for a period of more than three (3) hours for the purpose of taking such evidence.

(H) That the individual so identified or described shall have the right to legal counsel during the detention when such evidence is obtained and if he is unable to afford private counsel an attorney shall be provided at public expense as provided by section 19-852 [A> , IDAHO CODE <A] .

(I) That the individual will be under no legal obligation to submit to any interrogation or to make any statement during the period of his appearance unless sound of voice identification is required.

(J) The period of time, not exceeding ten (10) days, during which the order shall continue in force and effect. If the order is not executed within ten (10) days, a new order may be issued, pursuant to the provisions of this section.

(3) The order issued pursuant to this section shall be returned to the court not later than fifteen (15) days after its date of issuance and shall be accompanied by a sworn statement indicating how and when the evidence was taken and the type of evidence taken. The court shall give to the person from whom such evidence was taken a copy of the order and a copy of the sworn statement indicating what type of evidence was taken, if any.

(4) For the purposes of this section, " [D> I <D] [A> I <A] dentifying physical characteristics" shall mean the fingerprints, palm prints, footprints, measurements, handwriting, handprinting, sound of voice, blood samples, urine samples, saliva samples, hair samples, comparative personal appearance, or photographs of an individual.

[D> (5) Any evidence obtained pursuant to this section shall be returned to the individual from whom it was taken if a criminal action charging the offense described pursuant to subsection (1)(A) hereof is not filed against such individual within thirty (30) days after obtaining the same. <D]

[*4] SECTION 4. An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval, and shall apply retroactively to any violation alleged to have been committed as to which the time for commencing prosecution has not expired.

Statement of Purpose / Fiscal Impact

STATEMENT OF PURPOSE

RS 11174

The purpose of this legislation is to eliminate the statute of limitations for prosecution of sexual assault. The legislation also deletes language which requires the return of identifying physical characteristic evidence obtained when detaining an alleged perpetrator if charges are not filed in 30 days. This prevents the potential community bio-hazard that improperly disposed of body fluids presents.

FISCAL IMPACT

The actual fiscal impact over time is unknown and dependent on future additional
DNA testing and the cost of prosecuting cases that otherwise would not have been as a result of the five year statute of limitations.

HISTORY:

Approved by the Governor March 23, 2001
Effective March 23, 2001

SPONSOR: BY STATE AFFAIRS COMMITTEE

 

PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Idaho Code § 19-5507 (2000)
§ 19-5507. Responsibility for sample collection -- Timing of sample collection -- Site for sample collection


(1) A court shall order a
DNA sample and thumbprint impression to be taken after conviction and before sentencing of any person upon application by the prosecuting attorney, the attorney general, or the Idaho state police upon a showing that early collection of such samples will be in the best interest of justice. The DNA samples shall be collected in accordance with procedures established by the bureau of forensic services. The director may designate a state or county correctional facility for sample collection.

(2) Any person, including any juvenile tried as an adult, who comes within the terms of this chapter, and who is granted probation or who serves an entire term of confinement in a state or county facility, or who otherwise bypasses a prison inmate reception center shall, prior to physical release from custody, be required to provide a
DNA sample and thumbprint impression at a Idaho state police designated sample collection location. If the person is not incarcerated at the time of sentencing, the court shall order the person to report within ten (10) working days to the facilities designated for the collection of such specimens.

(3) The chief administrative officer of any state or local detention facility, jail or other facility shall cause a
DNA sample and thumbprint impression to be collected from the person subject to this chapter during the intake process at the facility, or immediately thereafter at another facility designated for such collection, if DNA samples previously have not been taken pursuant to this chapter.

(4) The director of the department of correction shall cause a
DNA sample and thumbprint impression to be collected from any person subject to the terms of this chapter who has been sentenced to serve a term of imprisonment in a state correctional institution and who has not had a DNA sample taken after conviction and before sentencing. The DNA sample and thumbprint impression shall be collected from the person during the intake process at the reception center designated by the director of the department of correction as soon as possible.

(5) Any person subject to the terms of this chapter who is serving a term of imprisonment or confinement, and who did not, for any reason, provide a
DNA sample or thumbprint impression for analysis by the bureau of forensic services, shall submit to such tests as soon as practicable, but in any event prior to final discharge, parole, or release from imprisonment or confinement. A person who was convicted prior to the effective date of this chapter is not exempt from these requirements.

(6) As a condition of probation or parole, any person subject to the terms of this chapter and who has not previously submitted a
DNA sample and thumbprint impression, shall upon notice by a law enforcement agency or an agent of the department of correction, be required to provide a DNA sample and thumbprint impression if it has been determined that such sample and thumbprint impression are not in the possession of the bureau of forensic services. That person is required to have the sample and impression taken within ten (10) working days at the designated county or state facility.

(7) When the state accepts an offender from another state under any interstate compact, or under any other reciprocal agreement with any county, state or federal agency, or any other provision of law, whether or not the offender is confined or released, the acceptance is conditional on the offender providing a
DNA sample and thumbprint impression if the offender was convicted of an offense which would qualify as a crime described in section 19-5506, Idaho Code, if committed in this state, or if the person was convicted of an equivalent offense in any other jurisdiction. If the offender from another state is not confined, the samples and impression required by this chapter must be provided within ten (10) working days after the offender reports to the supervising agent or within ten (10) working days of notice to the offender, whichever occurs first. The person shall report to the designated sample collection facility or facilities to have the sample and impression taken. If the offender from another state is confined, he or she shall provide the DNA sample and thumbprint impression as soon as practicable after receipt in a state or county correctional facility or other facility, and, in any event, before completion of the person's term of imprisonment, if that person is to be discharged.

(8) Any inmate serving a term of incarceration for committing an offense listed in section 19-5506, Idaho Code, who is released on parole, furlough, or other release, and is returned to a state or local correctional institution for a violation of a condition of that release, and that inmate has not previously provided a
DNA sample and thumbprint impression, shall provide a sample and impression upon returning to the state correctional institution.

HISTORY: I.C., § 19-5507, as added by 1997, ch. 120, § 1, p. 341; am. 1998, ch. 123, § 3, p. 456; am. 2000, ch. 469, § 49, p. 1450.

NOTES:
COMPILER'S NOTES. Sections 2 and 4 of S.L. 1998, ch. 123 are compiled as §§ 19-5505 and 19-5509, respectively.
Section 50 of S.L. 2000, ch. 469, is compiled as § 19-5510.



PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

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Idaho Code § 19-5508 (2000)
§ 19-5508. Additional samples authorized


Whenever the bureau of forensic services notifies the department of correction or other responsible agency that a
DNA sample or thumbprint impression is not adequate for any reason, the department of correction or other custodial agency shall draw or take additional samples and impressions as necessary to satisfy the requirements of this chapter, and transmit such samples and impressions to the bureau of forensic services.

HISTORY: I.C., § 19-5508, as added by 1997, ch. 120, § 1, p. 341.


PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

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Idaho Code § 19-5509 (2000)
§ 19-5509. Genetic testing of samples given for another purpose


If a person has been convicted of a crime as provided by this chapter and has given a
DNA sample or samples to law enforcement for any purpose, the bureau of forensic services is authorized to analyze such samples for DNA, and include the DNA profiles from such samples in the state's convicted felon DNA databank and databases. This provision applies whether the DNA sample originally collected was from a sexual or violent offender pursuant to the databank and database program, and whether the crime committed predated the effective date of this chapter, or any amendments thereto. This provision does not relieve a person subject to the terms of this chapter from giving a DNA sample and thumbprint impression for the DNA databank and database.

HISTORY: I.C., § 19-5509, as added by 1997, ch. 120, § 1, p. 341; am. 1998, ch. 123, § 4, p. 456.

NOTES:
COMPILER'S NOTES. Sections 3 and 5 of S.L. 1998, ch. 123 are compiled as §§ 19-5507 and 19-5511, respectively.

PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

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Idaho Code § 19-5510 (2000)
§ 19-5510. Applicability of chapter


Any person subject to the terms of this chapter who has not provided a
DNA sample and thumbprint impression for any reason, including the person's release prior to the enactment of this chapter, an oversight or error, or because of the person's transfer from another jurisdiction shall give a DNA sample and thumbprint impression for inclusion in the state's DNA database and databank within ten (10) working days of such person being notified of this requirement by the Idaho state police, the department of correction or an officer of the court. The samples and impressions shall be collected in a facility designated by the Idaho state police.

HISTORY: I.C., § 19-5510, as added by 1997, ch. 120, § 1, p. 341; am. 2000, ch. 469, § 50, p. 1450.

NOTES:
COMPILER'S NOTES. Section 49 of S.L. 2000, ch. 469, is compiled as § 19-5507.


PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

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Idaho Code § 19-5511 (2000)
§ 19-5511. Collection and forwarding of samples -- Liability -- Use of force


(1) The director of the department of correction or the chief administrative officer of the detention facility, jail, other facility at which the
DNA sample and thumbprint impression were collected shall forward the samples and impressions to the bureau of forensic services according to requirements set forth in the bureau of forensic services rules.

(2) The bureau of forensic services shall provide all specimen collection materials, thumbprint cards, mailing tubes, envelopes, labels and instructions for the collection of the samples and thumbprint impressions. The
DNA samples and thumbprint impressions shall thereafter be forwarded to the bureau of forensic services for analysis of DNA.

(3) The bureau of forensic services shall adopt rules specifying how
DNA samples are to be taken. The right thumbprint impression shall be taken on a form prescribed by the Idaho state police.

(4) No person or governmental agency shall be subject to civil or criminal liability for obtaining
DNA samples or obtaining thumbprint impressions absent a showing of reckless disregard for medically accepted practices or a showing of malice.

(5) Duly authorized law enforcement and correction personnel shall employ reasonable force in cases where an individual who is incarcerated refuses or resists submission to procedures for collecting a
DNA sample or thumbprint impression authorized by this chapter, and no employee shall be subject to criminal or civil liability for the reasonable use of force absent a showing of malice.

HISTORY: I.C., § 19-5511, as added by 1997, ch. 120, § 1, p. 341; am. 1998, ch. 123, § 5, p. 456; am. 2000, ch. 469, § 51, p. 1450.

NOTES:
COMPILER'S NOTES. Sections 4 and 6 of S.L. 1998, ch. 123 are compiled as §§ 19-5509 and 19-5514, respectively.
Section 52 of S.L. 2000, ch. 469, is compiled as § 19-5513.

PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

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Idaho Code § 19-5512 (2000)
§ 19-5512. Penalties


Any person subject to the terms of this chapter who fails to give a
DNA sample or thumbprint impression, after a request by the bureau of forensic services, the department of correction, any law enforcement personnel, or any officer of the court, is guilty of a felony. The samples and impressions required by this chapter may be taken by the use of reasonable force once a person is imprisoned for failure to give the required sample.

HISTORY: I.C., § 19-5512, as added by 1997, ch. 120, § 1, p. 341.

PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

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Idaho Code § 19-5513 (2000)
§ 19-5513. Expungement of information


(1) A person whose
DNA profile has been included in the database and databank pursuant to this chapter may make a written request for expungement of materials from the database and databank on the grounds that the conviction upon which the authority for including the DNA profile was based has been reversed and the case dismissed.

(2) The person requesting expungement must send a copy of his request, with proof of service on all parties to the following: the trial court which entered the conviction or rendered disposition in the case; the bureau of forensic services; and the prosecuting attorney of the county in which he was convicted. The court has the discretion to grant or deny the request for expungement. A trial court's denial of a request for expungement is an order not subject to appeal.

(3) Except as provided below, the Idaho state police shall expunge the
DNA sample and all identifiable information in the database and databank relating to the subject of the conviction upon receipt of a court order which verifies that the applicant has made the necessary showing at a noticed hearing, and which includes the following documents:

(a) Written request for expungement pursuant to this section;

(b) A certified copy of the court order reversing and dismissing the conviction;

(c) Proof of written notice to the prosecuting attorney and the bureau of forensic services that such expungement is being sought; and

(d) A court order finding that no retrial or appeal of the case is pending and verifying that at least sixty (60) days have passed since the defendant has notified the prosecuting attorney and the bureau of forensic services of the expungement request and that the court finds no reason, based on the interests of justice, to deny expungement.

(4) Upon order of the court, the Idaho state police shall destroy the
DNA sample relating to the subject of conviction, unless the state police determines that the person has otherwise become obligated to submit to DNA sample and thumbprint impression as a result of a separate conviction subject to the terms of this chapter.

(5) The bureau of forensic services is not required to destroy an item of physical evidence obtained from the
DNA sample if evidence relating to another person subject to the provisions of this chapter would thereby be destroyed. Notwithstanding this subsection, no sample, physical evidence or identifiable information is affected by an order to set aside a conviction.

HISTORY: I.C., § 19-5513, as added by 1997, ch. 120, § 1, p. 341; am. 2000, ch. 469, § 52, p. 1450.

NOTES:
COMPILER'S NOTES. Section 51 of S.L. 2000, ch. 469, is compiled as § 19-5511.


PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

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Idaho Code § 19-5514 (2000)
§ 19-5514. Limitations on disclosure of information


(1) All
DNA profiles retained by the bureau of forensic services pursuant to this chapter shall be treated as confidential as provided by chapter 3, title 9, Idaho Code.

(2) The
DNA information shall be filed with the offender's file maintained by the Idaho state police.

(3) The
DNA information shall not be included in the state summary criminal history information.

(4) The
DNA information, and thumbprint impressions, shall be released only to law enforcement agencies, including, but not limited to, parole officers of the department of correction, hearing officers of the parole authority, and prosecuting attorneys' offices, at the request of the agency, except as specified in this chapter. Dissemination of this information to law enforcement agencies and prosecuting attorneys' offices outside the state shall be done in conformity with the provisions of this chapter.

(5) Any person who, by virtue of employment or official position, or any person contracting to carry out any function under this chapter, including any officers, employees and agents of such contractor who has possession of or access to individual identifiable
DNA information contained in the state DNA database or databank and who willfully discloses such information in any manner to any person or agency not entitled to receive it is guilty of a misdemeanor.

(6) Furnishing
DNA information or thumbprint comparison results to defense counsel for criminal defense purposes in compliance with discovery is not a violation of this section.

(7) It is not a violation of this section to disseminate statistical or research information obtained from the offender's file, the computerized databank system, or any of the bureau of forensic services' databases provided that the subject of the file is not identified and cannot be identified from the information disclosed. It is also not a violation of this section to include information obtained from a file in a transcript or record of a judicial proceeding or in any other public record when the inclusion of the information in the public record is authorized by a court, statute or case law.

HISTORY: I.C., § 19-5514, as added by 1997, ch. 120, § 1, p. 341; am. 1998, ch. 123, § 6, p. 456; am. 2000, ch. 469, § 53, p. 1450.

NOTES:
COMPILER'S NOTES. Subsection (1) of this section contains a reference to § 9-340(47). Section 2 of S.L. 1997, ch. 120 amended § 9-340 by adding a subsection (47) which provided that records of the department of law enforcement or department of correction received or maintained pursuant to section 19-5514, Idaho Code, relating to
DNA databases and databanks were exempt from disclosure. However, since S.L. 1997, ch. 60, § 1 repealed the version of § 9-340 that S.L. 1997, ch. 120 amended, the amendment by ch. 120 never took effect. See Compiler's note to § 9-340 as effective July 1, 1997.
Sections 5 and 7 of S.L. 1998, ch. 123 are compiled as §§ 19-5511 and 19-5517, respectively.
Section 54 of S.L. 2000, ch. 469, is compiled as § 20-516.

SEC. TO SEC. REF. This section is referred to in § 9-340C.

PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

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Idaho Code § 19-5515 (2000)
§ 19-5515. Dissemination of data, information, and samples for forensic laboratory analysis


(1) Nothing in this chapter shall prohibit the sharing or disseminating of population database information with the following:

(a) Federal, state or local law enforcement agencies;

(b) Forensic laboratories that serve federal, state and local law enforcement agencies approved by the bureau of forensic services;

(c) A state's attorney general's office;

(d) A prosecuting attorney's office; or

(e) Any third party that the chief of the bureau of forensic services deems necessary to assist the bureau of forensic services with statistical analyses of the population database or to assist in the recovery or identification of missing persons.

(2) Nothing in this chapter shall prohibit the sharing or dissemination of protocol and forensic
DNA methods and quality control procedures with any of the parties identified in subsection (1) of this section.

(3) The state's
DNA population database and databank may be made available to and searched by the FBI and any agency participating in CODIS.

(4) The bureau of forensic services may provide samples from the
DNA samples collected pursuant to this chapter to public DNA laboratories for law enforcement purposes provided that the privacy provisions of this section are followed and each of the following conditions are met:

(a) The methodologies and procedures used by the public
DNA laboratory for analysis are approved by the bureau of forensic services;

(b) Only tests of value to law enforcement for identification purposes are performed and a copy of the results of the analysis are sent to the bureau of forensic services;

(c) All provisions concerning privacy and security enumerated in this section are followed.

HISTORY: I.C., § 19-5515, as added by 1997, ch. 120, § 1, p. 341.



PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

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Idaho Code § 19-5516 (2000)
§ 19-5516. Disposal of samples


The bureau of forensic services is authorized to have unused portions of samples or expired samples disposed of in the normal course of business and in an environmentally approved manner as long as such disposal method is designed to protect the identity and origin of samples from disclosure to third persons who are not part of law enforcement.

HISTORY: I.C., § 19-5516, as added by 1997, ch. 120, § 1, p. 341.



PENAL CODE
TITLE 19. CRIMINAL PROCEDURE
CHAPTER 55. THE IDAHO
DNA DATABASE ACT OF 1996

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Idaho Code § 19-5517 (2000)
§ 19-5517. Operation with existing law -- Authority of law enforcement officers


Nothing in this chapter shall limit or abrogate any existing authority of law enforcement officers to take, maintain, store and use
DNA information or thumbprint impressions for law enforcement purposes.

HISTORY: I.C., § 19-5517, as added by 1997, ch. 120, § 1, p. 341; am. 1998, ch. 123, § 7, p. 456.

NOTES:
COMPILER'S NOTES. Section 6 of S.L. 1998, ch. 123 is compiled as §§ 19-5514.



IDAHO 56TH IDAHO LEGISLATURE -- FIRST REGULAR SESSION

CHAPTER NO. 142

HOUSE BILL NO. 290

2001 Ida. ALS 142; 2001 Idaho Sess. Laws 142; 2001 Ida. Ch. 142; 2001 Ida. HB 290
SYNOPSIS: AN ACT RELATING TO CRIMINAL PROCEDURE; AMENDING SECTION 19-401, IDAHO CODE, TO PROVIDE THAT THERE IS NO LIMITATION OF THE TIME WITHIN WHICH PROSECUTIONS FOR RAPE MUST BE COMMENCED; AMENDING SECTION 19-402, IDAHO CODE, TO PROVIDE THAT CERTAIN TIME LIMITATIONS IN WHICH PROSECUTIONS MUST BE COMMENCED DO NOT APPLY TO CRIMES OF RAPE; AMENDING SECTION 19-625, IDAHO CODE, TO STRIKE THE PROVISION REQUIRING THE RETURN OF EVIDENCE AND TO MAKE TECHNICAL CORRECTIONS; DECLARING AN EMERGENCY AND PROVIDING RETROACTIVE APPLICATION.

NOTICE:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]
[D> Text within these symbols is deleted <D]

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Be It Enacted by the Legislature of the State of Idaho:

[*1] SECTION 1. That Section 19-401, Idaho Code, be, and the same is hereby amended to read as follows:

19-401. PROSECUTIONS FOR MURDER [A> , <A] [D> OR <D] VOLUNTARY MANSLAUGHTER [A> OR RAPE <A] . There is no limitation of time within which a prosecution for murder [A> , <A] [D> or <D] voluntary manslaughter [A> , OR RAPE PURSUANT TO SECTION 18-6101 2., 3., 4. OR 5., OR SECTION 18-6108, IDAHO CODE, <A] must be commenced. They may be commenced at any time after the death [A> OR RAPE <A] of the person killed [A> OR RAPED <A] .

[*2] SECTION 2. That Section 19-402, Idaho Code, be, and the same is hereby amended to read as follows:

19-402. COMMENCEMENT OF PROSECUTIONS FOR CRIMES AGAINST CHILDREN AND OTHER FELONIES. (1) A prosecution for any felony other than murder, voluntary manslaughter [A> , RAPE PURSUANT TO SECTION 18-6101 2., 3., 4. OR 5., OR SECTION 18-6108, IDAHO CODE, <A] or any felony committed upon or against a minor child must be commenced by the filing of the complaint or the finding of an indictment within five (5) years after its commission. Except as provided in subsection (2) of this section, a prosecution for any felony committed upon or against a minor child must be commenced within five (5) years after the commission of the offense by the filing of the complaint or a finding of an indictment.

(2) A prosecution under section 18-1506 or 18-1508, Idaho Code, must be commenced within five (5) years after the date the child reaches eighteen (18) years of age.

(3) A prosecution under section 18-1506A, Idaho Code, must be commenced within three (3) years after the date of initial disclosure by the victim.

[*3] SECTION 3. That Section 19-625, Idaho Code, be, and the same is hereby amended to read as follows:

19-625. DETENTION FOR OBTAINING EVIDENCE OF IDENTIFYING PHYSICAL CHARACTERISTICS. (1) A peace officer who is engaged, within the scope of his authority, in the investigation of an alleged criminal offense which is a felony may make written application upon oath or affirmation to a judge of any district court, or magistrates division thereof, for an order authorizing the temporary detention, for the purpose of obtaining evidence of identifying physical characteristics, of an identified or particularly described individual residing in or found in the jurisdiction over which the judicial officer presides. The order shall require the presence of the identified or particularly described individual at such time and place as the court shall direct for obtaining the identifying physical characteristic evidence. Such order may be issued by the judicial officer upon a showing under oath of all the following:

(A) Probable cause for belief that a specifically described criminal offense which is a felony has been committed.

(B) Reasonable grounds exist, which may or may not amount to probable cause, to believe that the identified or particularly described individual committed the criminal offense.

(C) Procurement of evidence of identifying physical characteristics from the identified or particularly described individual may contribute to the identification of the individual who committed such offense.

(D) Such evidence cannot otherwise be obtained by the investigating officer.

(2) Any order issued pursuant to the provisions of this section shall specify the following:

(A) The alleged criminal offense which is the subject of the application.

(B) The specific type of identifying physical characteristic evidence which is sought.

(C) The relevance of such evidence to the particular investigation.

(D) The identity or description of the individual who may be detained for obtaining such evidence.

(E) The name and official status of the investigative officer authorized to effectuate such detention and obtain such evidence.

(F) The place at which the obtaining of such evidence shall be effectuated.

(G) The time that such evidence shall be taken except that no person may be detained for a period of more than three (3) hours for the purpose of taking such evidence.

(H) That the individual so identified or described shall have the right to legal counsel during the detention when such evidence is obtained and if he is unable to afford private counsel an attorney shall be provided at public expense as provided by section 19-852 [A> , IDAHO CODE <A] .

(I) That the individual will be under no legal obligation to submit to any interrogation or to make any statement during the period of his appearance unless sound of voice identification is required.

(J) The period of time, not exceeding ten (10) days, during which the order shall continue in force and effect. If the order is not executed within ten (10) days, a new order may be issued, pursuant to the provisions of this section.

(3) The order issued pursuant to this section shall be returned to the court not later than fifteen (15) days after its date of issuance and shall be accompanied by a sworn statement indicating how and when the evidence was taken and the type of evidence taken. The court shall give to the person from whom such evidence was taken a copy of the order and a copy of the sworn statement indicating what type of evidence was taken, if any.

(4) For the purposes of this section, " [D> I <D] [A> I <A] dentifying physical characteristics" shall mean the fingerprints, palm prints, footprints, measurements, handwriting, handprinting, sound of voice, blood samples, urine samples, saliva samples, hair samples, comparative personal appearance, or photographs of an individual.

[D> (5) Any evidence obtained pursuant to this section shall be returned to the individual from whom it was taken if a criminal action charging the offense described pursuant to subsection (1)(A) hereof is not filed against such individual within thirty (30) days after obtaining the same. <D]

[*4] SECTION 4. An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval, and shall apply retroactively to any violation alleged to have been committed as to which the time for commencing prosecution has not expired.

Statement of Purpose / Fiscal Impact

STATEMENT OF PURPOSE

RS 11174

The purpose of this legislation is to eliminate the statute of limitations for prosecution of sexual assault. The legislation also deletes language which requires the return of identifying physical characteristic evidence obtained when detaining an alleged perpetrator if charges are not filed in 30 days. This prevents the potential community bio-hazard that improperly disposed of body fluids presents.

FISCAL IMPACT

The actual fiscal impact over time is unknown and dependent on future additional
DNA testing and the cost of prosecuting cases that otherwise would not have been as a result of the five year statute of limitations.

HISTORY:

Approved by the Governor March 23, 2001
Effective March 23, 2001

SPONSOR: BY STATE AFFAIRS COMMITTEE

 

ILLINOIS

CHAPTER 30. FINANCE
FUNDS
STATE FINANCE ACT

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30 ILCS 105/5.457 (2001)
§ 30 ILCS 105/5.457. [State Offender
DNA Identification System Fund]


Sec. 5.457. The State Offender
DNA Identification System Fund.

HISTORY:
Source: P.A. 90-130, § 10; 90-655, § 37.

NOTES:
EFFECTIVE DATE.
This section became effective January 1, 1998 pursuant to Ill. Const. (1970), Art. IV, § 10 and 5 ILCS 75/1.

EFFECT OF AMENDMENTS.
The 1998 amendment by P.A. 90-655, effective July 30, 1998, renumbered this section, which was formerly 30 ILCS 105/5.450 as enacted by P.A. 90-130, § 10.
CHAPTER 725. CRIMINAL PROCEDURE
CODE OF CRIMINAL PROCEDURE OF 1963
TITLE VI. PROCEEDINGS AT TRIAL
ARTICLE 116. POST-TRIAL MOTIONS

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725 ILCS 5/116-3 (2001)
§ 725 ILCS 5/116-3. Motion for fingerprint or forensic testing not available at trial regarding actual innocence


Sec. 116-3. Motion for fingerprint or forensic testing not available at trial regarding actual innocence. (a) A defendant may make a motion before the trial court that entered the judgment of conviction in his or her case for the performance of fingerprint or forensic
DNA testing on evidence that was secured in relation to the trial which resulted in his or her conviction, but which was not subject to the testing which is now requested because the technology for the testing was not available at the time of trial. Reasonable notice of the motion shall be served upon the State.

(b) The defendant must present a prima facie case that:

(1) identity was the issue in the trial which resulted in his or her conviction; and

(2) the evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect.

(c) The trial court shall allow the testing under reasonable conditions designed to protect the State's interests in the integrity of the evidence and the testing process upon a determination that:

(1) the result of the testing has the scientific potential to produce new, noncumulative evidence materially relevant to the defendant's assertion of actual innocence;

(2) the testing requested employs a scientific method generally accepted within the relevant scientific community.

HISTORY:
Source: P.A. 90-141, § 5.

NOTES:
EFFECTIVE DATE.
This section became effective January 1, 1998 pursuant to Ill. Const. (1970), Art. IV, § 10 and 5 ILCS 75/1.

CASE NOTES

ANALYSIS
In General
Actual Innocence
Assistance of Counsel
DNA Testing Not Required
Hearings
Identity as Issue at Trial
Illustrative Cases
Testing Denied
Testing Not Allowed
Timing
Weight of Evidence

IN GENERAL
The plain and unambiguous language of the statute evinces no legislative intent to limit the use of scientific testing only to situations where the testing will result in total vindication or has the potential to exonerate the defendant; instead, the statute requires only that it has the potential to produce new, noncumulative evidence that is materially relevant to the defendant's assertion of actual innocence. People v. Rokita, 316 Ill. App. 3d 292, 249 Ill. Dec. 363, 736 N.E.2d 205 (5 Dist. 2000).

ACTUAL INNOCENCE
A claim of "actual innocence" under the statute does not involve an analysis of whether a defendant was proved guilty beyond a reasonable doubt at the original trial; rather, in using the term "actual innocence," the legislature intended to limit the scope of the statute allowing for scientific testing only where it has the potential to exonerate a defendant. People v. Savory, 309 Ill. App. 3d 408, 242 Ill. Dec. 731, 722 N.E.2d 220 (3 Dist. 1999).

ASSISTANCE OF COUNSEL
Defendant contended that he received inadequate assistance of counsel on his motion for forensic testing, but a defendant may not complain of inadequate assistance of counsel if she or he had no right to counsel. People v. Love, 312 Ill. App. 3d 424, 245 Ill. Dec. 233, 727 N.E.2d 680 (2 Dist. 2000).

DNA TESTING NOT REQUIRED
The defendant was not entitled to
DNA testing of fingernail scrapings from the victims where he failed to show that any such evidence existed. People v. Savory, 309 Ill. App. 3d 408, 242 Ill. Dec. 731, 722 N.E.2d 220 (3 Dist. 1999).
The defendant was not entitled to
DNA testing of blood found on his pants since, even if DNA testing produced a negative match, the defendant would not be exonerated; instead, a negative match would suggest that the defendant did not wear those particular pants at the time of the murders at issue or, if he did wear those pants, that he may have committed his crimes without getting the victim's blood on them or that he was able to clean the blood off before the police recovered them. People v. Savory, 309 Ill. App. 3d 408, 242 Ill. Dec. 731, 722 N.E.2d 220 (3 Dist. 1999).

HEARINGS
The statute does not require that the trial court conduct a hearing on a defendant's petition for
DNA testing. People v. Stevens, 315 Ill. App. 3d 781, 248 Ill. Dec. 285, 733 N.E.2d 1283 (4 Dist. 2000).

IDENTITY AS ISSUE AT TRIAL
When a murder defendant raised the affirmative defense of insanity, he necessarily abandoned the question of who committed the acts charged for purposes of a motion for forensic testing. People v. Urioste, Ill. App. 3d , 249 Ill. Dec. 512, 736 N.E.2d 706 (5 Dist. 2000).
The statute is not restricted in application to defendants who challenged identity, but nothing else, during the course of their trial. People v. Urioste, Ill. App. 3d , 249 Ill. Dec. 512, 736 N.E.2d 706 (5 Dist. 2000).

ILLUSTRATIVE CASES
A defendant who was convicted of aggravated criminal sexual assault was entitled to STR-based PCR
DNA testing where: (1) the state conceded that, at the time of the trial, PCR testing was in its infant stages and that STR-based PCR testing did not exist; (2) identity was at issue at the defendant's trial; and (3) STR-based PCR testing had the potential to produce new, noncumulative evidence materially relevant to the defendant's assertion of actual innocence. People v. Rokita, 316 Ill. App. 3d 292, 249 Ill. Dec. 363, 736 N.E.2d 205 (5 Dist. 2000).

TESTING DENIED
The defendant was not entitled to
DNA testing of a bloody fingerprint on a pillow case since: (1) the defendant's identity was not at issue in his murder prosecution as he admitted in his statement to the police that he was in a hotel room with the victim and that he took the victim to the balcony from which he was thrown; and (2) DNA testing of the blood on the pillowcase could not provide any evidence that a different individual threw the victim off the hotel balcony. People v. Stevens, 315 Ill. App. 3d 781, 248 Ill. Dec. 285, 733 N.E.2d 1283 (4 Dist. 2000).

TESTING NOT ALLOWED
Forensic testing was incapable of producing the kind of new evidence that might exonerate a murder defendant where (1) the victim's mother had known the defendant for his entire life, (2) when she saw him on top of her daughter, she knew immediately who it was and reacted based upon that knowledge, (3) the defendant complied with her request to disengage, approached her face to face, and addressed her in a way unique to him by calling her "mom," and (4) a wealth of other evidence corroborated the eyewitness identification by the victim's mother. People v. Urioste, Ill. App. 3d , 249 Ill. Dec. 512, 736 N.E.2d 706 (5 Dist. 2000).

TIMING
There is no language in the statute indicating any legislative intent to impose a time limit for filing a motion for forensic testing. People v. Rokita, 316 Ill. App. 3d 292, 249 Ill. Dec. 363, 736 N.E.2d 205 (5 Dist. 2000).

WEIGHT OF EVIDENCE
The strength of the state's case is not a hurdle that a defendant has to overcome in order to meet the statute's requirements for postconviction forensic testing; when the court is deciding whether to grant a statutory request, the statute does not call for the circuit court to revisit the trial's identification evidence in order to measure its weight. People v. Urioste, Ill. App. 3d , 249 Ill. Dec. 512, 736 N.E.2d 706 (5 Dist. 2000).


CHAPTER 730. CORRECTIONS
UNIFIED CODE OF CORRECTIONS
CHAPTER V. SENTENCING
ARTICLE 4. SENTENCING


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730 ILCS 5/5-4-3 (2001)

[Prior to 1/1/93 cited as: Ill. Rev. Stat., Ch. 38, para. 1005-4-3]
§ 730 ILCS 5/5-4-3. Persons convicted of, or found delinquent for, qualifying offenses or institutionalized as sexually dangerous; blood specimens; genetic marker groups


Sec. 5-4-3. Persons convicted of, or found delinquent for, qualifying offenses or institutionalized as sexually dangerous; blood specimens; genetic marker groups. (a) Any person convicted of, found guilty under the Juvenile Court Act of 1987 for, or who received a disposition of court supervision for, a qualifying offense or attempt of a qualifying offense, or institutionalized as a sexually dangerous person under the Sexually Dangerous Persons Act [725 ILCS 205/0.01 et seq.], or committed as a sexually violent person under the Sexually Violent Persons Commitment Act shall, regardless of the sentence or disposition imposed, be required to submit specimens of blood to the Illinois Department of State Police in accordance with the provisions of this Section, provided such person is:

(1) convicted of a qualifying offense or attempt of a qualifying offense on or after the effective date of this amendatory Act of 1989, and sentenced to a term of imprisonment, periodic imprisonment, fine, probation, conditional discharge or any other form of sentence, or given a disposition of court supervision for the offense, or

(1.5) found guilty or given supervision under the Juvenile Court Act of 1987 [705 ILCS 405/1-1 et seq.] for a qualifying offense or attempt of a qualifying offense on or after the effective date of this amendatory Act of 1996, or

(2) ordered institutionalized as a sexually dangerous person on or after the effective date of this amendatory Act of 1989, or

(3) convicted of a qualifying offense or attempt of a qualifying offense before the effective date of this amendatory Act of 1989 and is presently confined as a result of such conviction in any State correctional facility or county jail or is presently serving a sentence of probation, conditional discharge or periodic imprisonment as a result of such conviction, or

(4) presently institutionalized as a sexually dangerous person or presently institutionalized as a person found guilty but mentally ill of a sexual offense or attempt to commit a sexual offense; or

(4.5) ordered committed as a sexually violent person on or after the effective date of the Sexually Violent Persons Commitment Act; or

(5) seeking transfer to or residency in Illinois under Sections 3-3-11 through 3-3-11.5 of the Unified Code of Corrections (Interstate Compact for the Supervision of Parolees and Probationers) [730 ILCS 5/3-3-11 through 730 ILCS 5/3-3-11.5] or the Interstate Agreements on Sexually Dangerous Persons Act. [725 ILCS 205/0.01 et seq.]

(a-5) Any person who was otherwise convicted of or received a disposition of court supervision for any other offense under the Criminal Code of 1961 or any offense classified as a felony under Illinois law or who was found guilty or given supervision for such a violation under the Juvenile Court Act of 1987, may, regardless of the sentence imposed, be required by an order of the court to submit specimens of blood to the Illinois Department of State Police in accordance with the provisions of this Section.

(b) Any person required by paragraphs (a)(1), (a)(1.5), (a)(2), and (a-5) to provide specimens of blood shall provide specimens of blood within 45 days after sentencing or disposition at a collection site designated by the Illinois Department of State Police.

(c) Any person required by paragraphs (a)(3), (a)(4), and (a)(4.5) to provide specimens of blood shall be required to provide such samples prior to final discharge, parole, or release at a collection site designated by the Illinois Department of State Police.

(c-5) Any person required by paragraph (a)(5) to provide specimens of blood shall, where feasible, be required to provide the specimens before being accepted for conditioned residency in Illinois under the interstate compact or agreement, but no later than 45 days after arrival in this State.

(d) The Illinois Department of State Police shall provide all equipment and instructions necessary for the collection of blood samples. The collection of samples shall be performed in a medically approved manner. Only a physician authorized to practice medicine, a registered nurse or other qualified person trained in venipuncture may withdraw blood for the purposes of this Act. The samples shall thereafter be forwarded to the Illinois Department of State Police, Division of Forensic Services, for analysis and categorizing into genetic marker groupings.

(e) The genetic marker groupings shall be maintained by the Illinois Department of State Police, Division of Forensic Services.

(f) The genetic marker grouping analysis information obtained pursuant to this Act shall be confidential and shall be released only to peace officers of the United States, of other states or territories, of the insular possessions of the United States, of foreign countries duly authorized to receive the same, to all peace officers of the State of Illinois and to all prosecutorial agencies. Notwithstanding any other statutory provision to the contrary, all information obtained under this Section shall be maintained in a single State data base, which may be uploaded into a national database, and may not be subject to expungement.

(g) For the purposes of this Section, "qualifying offense" means any of the following:

(1) Any violation or inchoate violation of Section 11-6, 11-9.1, 11-11, 11-15.1, 11-17.1, 11-18.1, 11-19.1, 11-19.2, 11-20.1, 12-13, 12-14, 12-14.1, 12-15, 12-16, or 12-33 of the Criminal Code of 1961 [720 ILCS 5/11-6, 720 ILCS 5/11-9.1, 720 ILCS 5/11-11, 720 ILCS 5/11-15.1, 720 ILCS 5/11-17.1, 720 ILCS 5/11-18.1, 720 ILCS 5/11-19.1, 720 ILCS 5/11-19.2, 720 ILCS 5/11-20.1, 720 ILCS 5/12-13, 720 ILCS 5/12-14, 720 ILCS 5/12-14.1, 720 ILCS 5/12-15, 720 ILCS 5/12-16, or 720 ILCS 5/12-33], or

(1.1) Any violation or inchoate violation of Section 9-1, 9-2, 10-1, 10-2, 12-11, 12-11.1, 18-1, 18-2, 18-3, 18-4, 19-1, or 19-2 of the Criminal Code of 1961 [730 ILCS 5/9-1, 730 ILCS 5/9-2, 730 ILCS 5/10-1, 730 ILCS 5/10-2, 730 ILCS 5/12-11, 730 ILCS 5/12-11.1, 730 ILCS 5/18-1, 730 ILCS 5/18-2, 730 ILCS 5/18-3, 730 ILCS 5/18-4, 730 ILCS 5/19-1, or 730 ILCS 5/19-2] committed on or after July 1, 2001, or

(2) Any former statute of this State which defined a felony sexual offense, or

(3) Any violation of paragraph (10) of subsection (b) of Section 10-5 of the Criminal Code of 1961 [220 ILCS 5/10-5] when the sentencing court, upon a motion by the State's Attorney or Attorney General, makes a finding that the child luring involved an intent to commit sexual penetration or sexual conduct as defined in Section 12-12 of the Criminal Code of 1961 [20 ILCS 5/12-12].

(g-5) The Department of State Police is not required to accept or process blood specimens from individuals convicted of any offense listed in paragraph (1.1) of subsection (g), until acquisition of the resources necessary to process such blood specimens, or until July 1, 2003, whichever is earlier.

Upon acquisition of necessary resources, including an appropriation for the purpose of implementing this amendatory Act of the 91st General Assembly, but no later than July 1, 2003, the Department of State Police shall notify the Department of Corrections, the Administrative Office of the Illinois Courts, and any other entity deemed appropriate by the Department of State Police, that the Department is prepared to receive and process blood specimens from individuals convicted of offenses enumerated in paragraph (1.1) of subsection (g).

(h) The Illinois Department of State Police shall be the State central repository for all genetic marker grouping analysis information obtained pursuant to this Act. The Illinois Department of State Police may promulgate rules for the form and manner of the collection of blood samples and other procedures for the operation of this Act. The provisions of the Administrative Review Law [735 ILCS 5/3-101 et seq.] shall apply to all actions taken under the rules so promulgated.

(i) A person required to provide a blood specimen shall cooperate with the collection of the specimen and any deliberate act by that person intended to impede, delay or stop the collection of the blood specimen is a Class A misdemeanor.

(j) Any person required by subsection (a) to submit specimens of blood to the Illinois Department of State Police for analysis and categorization into genetic marker grouping, in addition to any other disposition, penalty, or fine imposed, shall pay an analysis fee of $500. Upon verified petition of the person, the court may suspend payment of all or part of the fee if it finds that the person does not have the ability to pay the fee.

(k) All analysis and categorization fees provided for by subsection (j) shall be regulated as follows:

(1) The State Offender
DNA Identification System Fund is hereby created as a special fund in the State Treasury.

(2) All fees shall be collected by the clerk of the court and forwarded to the State Offender
DNA Identification System Fund for deposit. The clerk of the circuit court may retain the amount of $10 from each collected analysis fee to offset administrative costs incurred in carrying out the clerk's responsibilities under this Section.

(3) Fees deposited into the State Offender
DNA Identification System Fund shall be used by Illinois State Police crime laboratories as designated by the Director of State Police. These funds shall be in addition to any allocations made pursuant to existing laws and shall be designated for the exclusive use of State crime laboratories. These uses may include, but are not limited to, the following:

(A) Costs incurred in providing analysis and genetic marker categorization as required by subsection (d).

(B) Costs incurred in maintaining genetic marker groupings as required by subsection (e).

(C) Costs incurred in the purchase and maintenance of equipment for use in performing analyses.

(D) Costs incurred in continuing research and development of new techniques for analysis and genetic marker categorization.

(E) Costs incurred in continuing education, training, and professional development of forensic scientists regularly employed by these laboratories.

(1) The failure of a person to provide a specimen, or of any person or agency to collect a specimen, within the 45 day period shall in no way alter the obligation of the person to submit such specimen, or the authority of the Illinois Department of State Police or persons designated by the Department to collect the specimen, or the authority of the Illinois Department of State Police to accept, analyze and maintain the specimen or to maintain or upload results of genetic marker grouping analysis information into a State or national database.

HISTORY:
Source: P.A. 86-881; 87-963, § 2; 89-8, § 15-10; 89-428, § 280; 89-462, § 280; 89-550, § 5; 90-124, § 5; 90-130, § 30; 90-655, § 163; 90-793, § 25; 91-528, § 5.

NOTES:
NOTE.
This section was Ill.Rev.Stat., Ch. 38, para. 1005-4-3.

ILLINOIS ADMINISTRATIVE CODE.
See 20 Illinois Administrative Code, § 1285.20.

EFFECT OF AMENDMENTS.
The 1992 amendment, effective August 28, 1992, substituted "under the Sexually Dangerous Persons Act" for "pursuant to "An Act in relation to sexually dangerous persons, and providing for their commitment, detention and supervision, approved July 6, 1938, as amended'"; deleted "and saliva" following "specimens of blood" throughout the section; substituted "45 days" for "10 days" in subsection (b); deleted "as now or hereafter amended" following "the Criminal Code of 1961" in subsection (g); and added subsection (i).
The 1995 amendment by P.A. 89-8, effective January 1, 1996, in subdivision (a)(4) substituted "to commit a sexual offense; or" for "of a sexual offense"; added subdivision (a)(5); and added subsection (c-5).
The 1995 amendment by P.A. 89-428, effective December 13, 1995 and the 1996 amendment by P.A. 89-462, effective May 29, 1996, made identical changes: they each, incorporated the amendments by P.A. 89-8; and in subsection (g) inserted "12-14.1".
The 1996 amendment by P.A. 89-550, effective January 1, 1997, added the section catchline; in subsection (a), in the introductory language, inserted "found delinquent for" and inserted "or disposition"; added subdivision (a)(1.5); in subsection (b) inserted "(a)(1.5)" and inserted "or disposition"; and in subsection (f) added the second sentence.
The 1997 amendment by P.A. 90-124, effective January 1, 1998, combined the amendments by P.A. 89-428, P.A. 89-462 and P.A. 89-550; and in subsection (g), in the introductory language, added at the end "any of the following"; added the subdivision (g)(1) designation; in subdivision (g)(1) inserted "11-6, 11-9.1", inserted "11-15.1, 11-17.1, 11-18.1 11-19.1, 11-19.2, 11-20.1", substituted a comma for "or" preceding "12-16" and inserted "or 12-33"; added the subdivision (g)(2) designation; in subdivision (g)(2) added "or" at the end; and added subdivision (g)(3).
The 1997 amendment by P.A. 90-130, effective January 1, 1998, combined the amendments by P.A. 89-462 and P.A. 89-550; in the section catchline substituted "institutionalized as" for "found" and substituted "specimens; genetic marker groups" for "tests required"; in subsection (d), in the fourth sentence, deleted "and Identification" following "Forensic Services"; in subsection (e) deleted "and Identification" from the end; and added subsections (j) and (k).
The 1998 amendment by P.A. 90-655, effective July 30, 1998, incorporated the amendments made by P.A. 90-124 and P.A. 90-130.
The 1998 amendment by P.A. 90-793, effective August 14, 1998, substituted "shall provide specimens of blood within 45 days" for "shall be ordered by the court to have specimens of blood collected within 45 days" in subsection (b); in subsection (i), substituted "required" for "ordered by the court" and "is a Class A misdemeanor" for "shall be punishable as contempt of court."
The 1999 amendment by P.A. 91-528, effective January 1, 2000, incorporated the amendments by P.A. 90-655 and P.A. 90-793; substituted "qualifying offense(s)" for "sexual offense(s)" throughout the section; in subdivision (a) substituted "guilty under the Juvenile Court Act of 1987" for "delinquent", and inserted "or committed as a sexually violent person under the Sexually Violent Persons Commitment Act"; substituted "guilty or given supervision" for "delinquent" in subdivision (1.5); inserted subdivisions (4.5) and (a-5); inserted "and (a-5)" and made stylistic changes in subdivision (b); inserted "and (a)(4.5)" and made stylistic changes in subdivision (c); substituted "trained in venipuncture" for "approved by the Illinois Department of Public Health" in subdivision (d); inserted "State data base, which may be uploaded into a national database" in subdivision (f); inserted "or inchoate violations" and made stylistic changes in subdivision (g)(1); and inserted subdivisions (g-5),(k)(3)(E)(1).

CASE NOTES

ANALYSIS
Constitutionality
--Blood Sampling
--Contempt Provision
--Nonconsensual Extraction of Blood
--Timing
--Warrant Requirement
Physical Intrusion
Res Judicata

CONSTITUTIONALITY
Public Act 89-428 was enacted in violation of the single subject rule of the state constitution and is therefore invalid in its entirety. Johnson v. Edgar, 176 Ill. 2d 499, 224 Ill. Dec. 1, 680 N.E.2d 1372 (1997).

--BLOOD SAMPLING
This section is not unconstitutional for requiring defendants convicted of sexual offenses to submit blood samples to the Illinois Department of State Police. People v. Calahan, 272 Ill. App. 3d 293, 208 Ill. Dec. 532, 649 N.E.2d 588 (1 Dist. 1995).

--CONTEMPT PROVISION
Although subsection (i) violates the separation of powers doctrine, the subsection may be severed from the section without doing violence to the intent and goals of the legislation. Murneigh v. Gainer, 177 Ill. 2d 287, 226 Ill. Dec. 614, 685 N.E.2d 1357 (1997).
Subsection (i) conscripts the Illinois courts into the service of an essentially administrative program for the collection and analysis of blood samples for inclusion in the state's data bank, an administrative scheme belonging to the executive branch; the vesting of an executive function in the judiciary is prohibited by the separation of powers clause. Murneigh v. Gainer, 177 Ill. 2d 287, 226 Ill. Dec. 614, 685 N.E.2d 1357 (1997).
Subsection (i) violates the separation of power principles because it compels the judiciary to enter orders that are administrative in nature and then to punish violations of such orders with contempt of court; the mandatory nature of the provisions vitiates the courts' inherent discretion in matters concerning the exercise of the contempt power. Murneigh v. Gainer, 177 Ill. 2d 287, 226 Ill. Dec. 614, 685 N.E.2d 1357 (1997).

--NONCONSENSUAL EXTRACTION OF BLOOD
Both federal and state courts have uniformly concluded that statutes which authorize collection of blood specimens to assist in law enforcement are not penal in nature, rather, the blood sample is taken and analyzed for the sole purpose of establishing a data bank which will aid future law enforcement. The blood specimen statute thus does not run afoul of the ex post facto clause. Gilbert v. Peters, 55 F.3d 237 (7th Cir. 1995).
The nonconsensual extraction of blood and saliva from persons convicted of the sex offenses enumerated in this section does not offend traditional fourth amendment principles. People v. Wealer, 264 Ill. App. 3d 6, 201 Ill. Dec. 697, 636 N.E.2d 1129 (2 Dist.), appeal denied, 157 Ill. 2d 519, 205 Ill. Dec. 182, 642 N.E.2d 1299 (1994).
A person convicted of the sex offenses enumerated in this section is not compelled to provide blood and saliva samples unless a previous plea of guilty had been entered or that person was proven guilty of an enumerated offense beyond a reasonable doubt; accordingly, because the sampling mandated under this section is functionally equivalent to fingerprinting, which also necessarily intrudes a convicted sex offender's diminished privacy interest, the suspicionless blood and saliva sampling of persons convicted of the sex offenses enumerated in this section, regardless of the sentence imposed, does not violate the fourth amendment or Illinois Constitution prohibition of unreasonable searches and seizures. People v. Wealer, 264 Ill. App. 3d 6, 201 Ill. Dec. 697, 636 N.E.2d 1129 (2 Dist.), appeal denied, 157 Ill. 2d 519, 205 Ill. Dec. 182, 642 N.E.2d 1299 (1994).

--TIMING
Subsection (c) is a timing provision rather than an enforcement mechanism, and provides only that a prisoner must provide a specimen of his blood at a certain time "prior to his release," and this is not unconstitutional as being an ex post facto law. Doe v. Gainer, 162 Ill. 2d 15, 204 Ill. Dec. 652, 642 N.E.2d 114 (1994), cert. denied, 513 U.S. 1168, 115 S. Ct. 1139, 130 L. Ed. 2d 1099 (1995).

--WARRANT REQUIREMENT
This section adequately addresses the concerns underlying the warrant requirement; its scope and objective are narrowly limited because it provides for nonconsensual sampling for the purpose of maintaining a data bank, and the information is kept strictly confidential and is made available only to law enforcement officials. People v. Wealer, 264 Ill. App. 3d 6, 201 Ill. Dec. 697, 636 N.E.2d 1129 (2 Dist.), appeal denied, 157 Ill. 2d 519, 205 Ill. Dec. 182, 642 N.E.2d 1299 (1994).

PHYSICAL INTRUSION
The physical intrusion imposed by the testing mandated under this section is relatively slight and poses no threat to the health or safety of the individual tested. People v. Wealer, 264 Ill. App. 3d 6, 201 Ill. Dec. 697, 636 N.E.2d 1129 (2 Dist.), appeal denied, 157 Ill. 2d 519, 205 Ill. Dec. 182, 642 N.E.2d 1299 (1994).

RES JUDICATA
Res judicata did not bar plaintiff's constitutional challenge to the contempt provisions of this section because the defendants did not establish that the precise question was or should have been considered in plaintiff's prior suit, alleging ex post facto and due process violations. Murneigh v. Gainer, 177 Ill. 2d 287, 226 Ill. Dec. 614, 685 N.E.2d 1357 (1997).

LEGAL PERIODICALS
For article, "Survey of Illinois Law: Criminal Law and Procedure," see 21 S. Ill. U.L.J. 759 (1997).

RESEARCH REFERENCES
Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.



INDIANA

TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

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Burns Ind. Code Ann. § 10-1-9-1 (2000)
§ 10-1-9-1. "Combined
DNA Index System" defined


As used in this chapter, "Combined
DNA Index System" refers to the Federal Bureau of Investigation's national DNA identification index system that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories.

HISTORY: P.L.100-1996, § 1.



TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

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Burns Ind. Code Ann. § 10-1-9-2 (2000)
§ 10-1-9-2. "
DNA" defined


As used in this chapter, "
DNA" means deoxyribonucleic acid. DNA is located in the nucleated cells and provides an individual's personal genetic blueprint. DNA encodes genetic information that is the basis of human heredity and forensic identification.

HISTORY: P.L.100-1996, § 1.


10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

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Burns Ind. Code Ann. § 10-1-9-3 (2000)
§ 10-1-9-3. "
DNA analysis" defined


As used in this chapter, "
DNA analysis" means an identification process in which the unique genetic code of an individual that is carried by the individual's DNA is compared with the genetic codes of another individual.

HISTORY: P.L.100-1996, § 1.



TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

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Burns Ind. Code Ann. § 10-1-9-4 (2000)
§ 10-1-9-4. "
DNA profile" defined


As used in this chapter, "
DNA profile" means the results of all DNA identification tests on an individual's DNA sample.

HISTORY: P.L.100-1996, § 1.

TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

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Burns Ind. Code Ann. § 10-1-9-5 (2000)
§ 10-1-9-5. "
DNA record" defined


As used in this chapter, "
DNA record" refers to DNA identification information stored in the state DNA data base or the Combined DNA Index System for the purpose of generating investigative leads or supporting statistical interpretation of DNA test results. The DNA record is the result obtained from the DNA typing tests. The DNA record is comprised of the characteristics of a DNA sample that are of value in establishing the identity of individuals.

HISTORY: P.L.100-1996, § 1.


TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

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Burns Ind. Code Ann. § 10-1-9-6 (2000)
§ 10-1-9-6. "
DNA sample" defined


As used in this chapter, "
DNA sample" means a blood, tissue, or other body fluid sample:

(1) Provided by a person with respect to offenses covered by this chapter; or

(2) Submitted to the state police laboratory under this chapter for analysis or storage, or both.

HISTORY: P.L.100-1996, § 1.



TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

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Burns Ind. Code Ann. § 10-1-9-7 (2000)
§ 10-1-9-7. "Superintendent" defined


As used in this chapter, "superintendent" means the superintendent of the state police department or the superintendent's designee.

HISTORY: P.L.100-1996, § 1.

TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

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Burns Ind. Code Ann. § 10-1-9-8 (2000)
§ 10-1-9-8. Indiana
DNA data base authorized -- DNA analysis of convicted offenders -- Adoption of rules


(a) The superintendent is authorized to establish a data base of
DNA identification records for convicted criminals, crime scene specimens, unidentified missing persons, and close biological relatives of missing persons.

(b) The superintendent shall maintain the Indiana
DNA data base.

(c) The superintendent may contract for services to perform
DNA analysis of convicted offenders under section 10 [IC 10-1-9-10] of this chapter to assist federal, state, and local criminal justice and law enforcement agencies in the putative identification, detection, or exclusion of individuals who are subjects of an investigation or prosecution of a sex offense, a violent crime, or another crime in which biological evidence is recovered from the crime scene.

(d) The superintendent shall adopt rules under IC 4-22-2 necessary to administer and enforce the provisions and intent of this chapter.

HISTORY: P.L.100-1996, § 1.

TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

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Burns Ind. Code Ann. § 10-1-9-9 (2000)
§ 10-1-9-9. Uses of Indiana
DNA data base


The superintendent shall ensure that the Indiana
DNA data base:

(1) Supports development of a population statistics data base, when personal identifying information is removed;

(2) Supports identification research and protocol development of forensic
DNA analysis;

(3) Assists in achieving quality control; and

(4) Assists in the recovery or identification of human remains from mass disasters, or for other humanitarian purposes, including identification of missing persons who may be alive.

HISTORY: P.L.100-1996, § 1.


TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

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Burns Ind. Code Ann. § 10-1-9-10 (2000)
§ 10-1-9-10. Certain convicted persons to provide
DNA sample


(a) This section applies to a person described in subsection (b) or (c).

(b) This section applies to a person convicted of a felony under IC 35-42 (offenses against the person), IC 35-43-2-1 (burglary), or IC 35-42-4-6 (child solicitation):

(1) after June 30, 1996, whether or not the person is sentenced to a term of imprisonment; and

(2) before July 1, 1996, if the person is held in jail or prison on or after July 1, 1996.

(c) This section applies to a person convicted of a criminal law in effect before October 1, 1977, that penalized an act substantially similar to a felony described in IC 35-42 or IC 35-43-2-1 or that would have been an included offense of a felony described in IC 35-42 or IC 35-43-2-1, if the felony had been in effect:

(1) after June 30, 1998, whether or not the person is sentenced to a term of imprisonment; and

(2) before July 1, 1998, if the person is held in jail or prison on or after July 1, 1998.

(d) A person described in subsection (b) or (c) shall provide a
DNA sample to the department of correction. A convicted person is not required to submit a blood sample if doing so would present a substantial and an unreasonable risk to the person's health.

HISTORY: P.L.100-1996, § 1; P.L.108-1998, § 1; P.L.1-1999, § 33.

TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

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Burns Ind. Code Ann. § 10-1-9-11 (2000)
§ 10-1-9-11. Guidelines for sample collection


The superintendent may issue specific guidelines relating to procedures for
DNA sample collection and shipment within Indiana for DNA identification testing.

HISTORY: P.L.100-1996, § 1.


TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

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Burns Ind. Code Ann. § 10-1-9-12 (2000)
§ 10-1-9-12. Samples to be collected in medically approved manner


DNA samples for the Indiana DNA data base must be collected in a medically approved manner by a physician, registered nurse, licensed vocational nurse, licensed clinical laboratory technologist, or other person trained to properly collect DNA samples.

HISTORY: P.L.100-1996, § 1.



TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 10-1-9-13 (2000)
§ 10-1-9-13. Tests performed on
DNA samples


(a) Tests performed on the
DNA samples are for the following purposes:

(1) To analyze and type the genetic markers contained in or derived from
DNA.

(2) For law enforcement identification purposes.

(3) For research or administrative purposes, including:

(A) Development of a population statistics data base, after personal identifying information is removed;

(B) Support of identification research and protocol development of forensic
DNA analysis methods;

(C) Quality control; and

(D) Assisting in the recovery or identification of human remains from mass disasters or for other humanitarian purposes, including identification of missing persons who may be alive.

(b) Tests performed under this chapter must be conducted in a manner that produces compatible results with procedures specified by the Federal Bureau of Investigation Laboratory to ensure that
DNA records are fully exchangeable between DNA laboratories.

HISTORY: P.L.100-1996, § 1.


TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 10-1-9-14 (2000)
§ 10-1-9-14. Laboratory conducting forensic
DNA analysis -- Standards -- Transmittal of data base records to state police laboratory


(a) A laboratory conducting forensic
DNA analysis in Indiana must implement and follow nationally recognized standards for DNA quality assurance and proficiency testing, such as those approved by the American Society of Crime Laboratory Directors Laboratory Accreditation Board.

(b) Quality assurance guidelines issued by the Technical Working Group on
DNA Analysis Methods (a committee of scientists that has promulgated nationally recognized quality assurance standards) serve as the standard for DNA testing under this chapter unless and until national standards are set.

(c) A laboratory conducting forensic
DNA analysis in Indiana shall forward relevant DNA data base records to the state police laboratory.

HISTORY: P.L.100-1996, § 1.



TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 10-1-9-15 (2000)
§ 10-1-9-15. Tampering with
DNA sample or container -- Penalty


A person who knowingly or intentionally without lawful authority tampers with or attempts to tamper with any
DNA sample or a container collected under section 10 [IC 10-1-9-10] of this chapter commits a Class D felony.

HISTORY: P.L.100-1996, § 1.

NOTES:
CROSS REFERENCES. Penalties for felonies, IC 35-50-1, IC 35-50-2, IC 35-50-5-2.



TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 10-1-9-16 (2000)
§ 10-1-9-16. Unauthorized use of information or of
DNA samples -- Penalty


A person who knowingly or intentionally disseminates, receives, or otherwise uses or attempts to use information in the Indiana
DNA data base or DNA samples used in DNA analyses, knowing that such dissemination, receipt, or use is for a purpose other than authorized by law commits a Class A misdemeanor.

HISTORY: P.L.100-1996, § 1.

NOTES:
CROSS REFERENCES. Penalties for misdemeanors, IC 35-50-1, IC 35-50-3, IC 35-50-5-2.



TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 10-1-9-17 (2000)
§ 10-1-9-17. Limitation on access of
DNA samples and DNA analysis results


A laboratory conducting forensic
DNA analysis in Indiana may disclose or allow access to collected DNA samples and DNA analysis results only under the following circumstances:

(1) To criminal justice agencies for law enforcement identification purposes.

(2) To defense counsel for criminal defense purposes.

(3) Upon authorization by a court or statute.

(4) For a population statistics data base, identification research and protocol development, or quality control purposes, but only if personal identifying information is removed.

HISTORY: P.L.100-1996, § 1.


TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 10-1-9-18 (2000)
§ 10-1-9-18. Information about physical traits or predisposition for disease


The information contained in the Indiana
DNA data base records may not be collected or stored for the purpose of obtaining information about human physical traits or predisposition for disease.

HISTORY: P.L.100-1996, § 1.


TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 10-1-9-18 (2000)
§ 10-1-9-18. Information about physical traits or predisposition for disease


The information contained in the Indiana
DNA data base records may not be collected or stored for the purpose of obtaining information about human physical traits or predisposition for disease.

HISTORY: P.L.100-1996, § 1.

TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 10-1-9-19 (2000)
§ 10-1-9-19. Limitation on personal information stored in data base


Personal information stored in the Indiana
DNA data base is limited to data necessary to generate investigative leads, support statistical interpretation of test results, and any other information necessary to allow for the successful implementation of the Indiana DNA data base system.

HISTORY: P.L.100-1996, § 1.


 

TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 10-1-9-20 (2000)
§ 10-1-9-20. Expungement of
DNA profile from data base


(a) A person whose
DNA profile has been included in the Indiana DNA data base may request expungement of the profile from the DNA data base on the grounds that the conviction on which the authority for inclusion in the Indiana DNA data base has been reversed and the case has been dismissed.

(b) All identifiable information in the Indiana
DNA data base pertaining to a person requesting expungement under subsection (a) shall be expunged and all samples from the person shall be destroyed upon receipt of:

(1) A written request for expungement under subsection (a);

(2) A certified copy of the court order reversing and dismissing the conviction; and

(3) Any other information necessary to ascertain the validity of the request.

(c) Upon expungement of a person's
DNA profile from the Indiana DNA data base, the superintendent shall request expungement of the person's DNA profile from the national DNA data base.

HISTORY: P.L.100-1996, § 1.

TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 10-1-9-21 (2000)
§ 10-1-9-21. Access to data base limited to law enforcement agencies


(a) Access to the Indiana
DNA data base is limited to federal, state, and local law enforcement agencies through their servicing forensic DNA laboratories.

(b) The superintendent shall take appropriate measures to ensure that the Indiana
DNA data base is protected against unauthorized access.

HISTORY: P.L.100-1996, § 1.


TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 10-1-9-22 (2000)
§ 10-1-9-22. Denial of privilege to exchange information for failure to meet quality control and privacy standards


The superintendent may deny the privilege of a laboratory performing forensic
DNA analysis within Indiana to exchange DNA identification records with federal, state, or local criminal justice agencies if required quality control and privacy standards described in this chapter for the Indiana DNA data base are not met by the laboratory.

HISTORY: P.L.100-1996, § 1.


TITLE 16. HEALTH AND HOSPITALS
ARTICLE 18. GENERAL PROVISIONS AND DEFINITIONS
CHAPTER 2. DEFINITIONS

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 16-18-2-99 (2000)
§ 16-18-2-99.
DNA test


"
DNA test," for purposes of IC 16-37-2-10, has the meaning set forth in IC 16-37-2-10(a).

HISTORY: P.L.2-1993, § 1.



TITLE 16. HEALTH AND HOSPITALS
ARTICLE 37. VITAL STATISTICS
CHAPTER 2. CERTIFICATION OF BIRTHS

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 16-37-2-10 (2000)
§ 16-37-2-10. "
DNA test" defined -- Additions or corrections based on DNA test


(a) As used in this section, "
DNA test" means an identification process in which the unique genetic code of an individual that is carried by the individual's deoxyribonucleic acid (DNA) is compared with the genetic codes of another individual.

(b) The state department may make additions to or corrections in a certificate of birth on receipt of adequate documentary evidence, including the results of a
DNA test under subsection (c) or a paternity affidavit executed under section 2.1 [IC 16-37-2-2.1] of this chapter.

(c) The state department may make an addition to a birth certificate based on the results of a
DNA test only if:

(1) A father is not named on the birth certificate; and

(2) A citation to this subsection as the authority for the addition is noted on the birth certificate.

HISTORY: P.L.2-1993, § 20; P.L.46-1995, § 65; P.L.133-1995, § 16.

NOTES:
COMPILER'S NOTES. This section was separately amended by P.L.46-1995 and by P.L.133-1995, neither act referring to the other. Because the amendments were identical, this section is set out only once.
P.L.46-1995, § 104, effective May 8, 1995, provides: "The provisions of this act are severable in the manner provided by IC 1-1-1-8(b)."



TITLE 10. STATE POLICE, CIVIL DEFENSE AND MILITARY AFFAIRS
ARTICLE 1. STATE POLICE
CHAPTER 9. INDIANA
DNA DATA BASE

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 10-1-9-22 (2000)
§ 10-1-9-22. Denial of privilege to exchange information for failure to meet quality control and privacy standards


The superintendent may deny the privilege of a laboratory performing forensic
DNA analysis within Indiana to exchange DNA identification records with federal, state, or local criminal justice agencies if required quality control and privacy standards described in this chapter for the Indiana DNA data base are not met by the laboratory.

HISTORY: P.L.100-1996, § 1.

TITLE 16. HEALTH AND HOSPITALS
ARTICLE 18. GENERAL PROVISIONS AND DEFINITIONS
CHAPTER 2. DEFINITIONS

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 16-18-2-99 (2000)
§ 16-18-2-99.
DNA test


"
DNA test," for purposes of IC 16-37-2-10, has the meaning set forth in IC 16-37-2-10(a).

HISTORY: P.L.2-1993, § 1.

TITLE 16. HEALTH AND HOSPITALS
ARTICLE 37. VITAL STATISTICS
CHAPTER 2. CERTIFICATION OF BIRTHS

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Burns Ind. Code Ann. § 16-37-2-10 (2000)
§ 16-37-2-10. "
DNA test" defined -- Additions or corrections based on DNA test


(a) As used in this section, "
DNA test" means an identification process in which the unique genetic code of an individual that is carried by the individual's deoxyribonucleic acid (DNA) is compared with the genetic codes of another individual.

(b) The state department may make additions to or corrections in a certificate of birth on receipt of adequate documentary evidence, including the results of a
DNA test under subsection (c) or a paternity affidavit executed under section 2.1 [IC 16-37-2-2.1] of this chapter.

(c) The state department may make an addition to a birth certificate based on the results of a
DNA test only if:

(1) A father is not named on the birth certificate; and

(2) A citation to this subsection as the authority for the addition is noted on the birth certificate.

HISTORY: P.L.2-1993, § 20; P.L.46-1995, § 65; P.L.133-1995, § 16.

NOTES:
COMPILER'S NOTES. This section was separately amended by P.L.46-1995 and by P.L.133-1995, neither act referring to the other. Because the amendments were identical, this section is set out only once.
P.L.46-1995, § 104, effective May 8, 1995, provides: "The provisions of this act are severable in the manner provided by IC 1-1-1-8(b)."




INDIANA ADVANCE LEGISLATIVE SERVICE
STATENET
Copyright © 2001 by Information for Public Affairs, Inc.

INDIANA 112TH GENERAL ASSEMBLY -- FIRST REGULAR SESSION

SENATE ENROLLED ACT NO. 316

2001 Ind. SEA 316
SYNOPSIS: AN ACT concerning criminal law and procedure.

NOTICE:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]

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Be it enacted by the General Assembly of the State of Indiana:

[*1] SECTION 1. IC 10-1-9-10, AS AMENDED BY P.L.1-1999, SECTION 33, IS AMENDED TO READ AS FOLLOWS (EFFECTIVE JULY 1, 2001): Sec. 10. (a) This section applies to a person described in subsection (b) or (c).

(b) This section applies to a person convicted of a felony under IC 35-42 (offenses against the person), IC 35-43-2-1 (burglary), or IC 35-42-4-6 (child solicitation):

(1) after June 30, 1996, whether or not the person is sentenced to a term of imprisonment; and

(2) before July 1, 1996, if the person is held in jail or prison on or after July 1, 1996.

(c) This section applies to a person convicted of a criminal law in effect before October 1, 1977, that penalized an act substantially similar to a felony described in IC 35-42 or IC 35-43-2-1 or that would have been an included offense of a felony described in IC 35-42 or IC 35-43-2-1, if the felony had been in effect:

(1) after June 30, 1998, whether or not the person is sentenced to a term of imprisonment; and

(2) before July 1, 1998, if the person is held in jail or prison on or after July 1, 1998.

(d) A person described in subsection (b) or (c) shall provide a
DNA sample to the:

[A> (1) <A] department of correction [A> OR THE DESIGNEE OF THE DEPARTMENT OF CORRECTION, IF THE OFFENDER IS COMMITTED TO THE DEPARTMENT OF CORRECTION; OR <A]

[A> (2) THE COUNTY SHERIFF OR THE DESIGNEE OF THE COUNTY SHERIFF, IF THE OFFENDER IS HELD IN A COUNTY JAIL OR OTHER COUNTY PENAL FACILITY, PLACED IN A COMMUNITY CORRECTIONS PROGRAM (AS DEFINED IN IC 35-38-2.6-2), OR PLACED ON PROBATION. <A]

A convicted person is not required to submit a blood sample if doing so would present a substantial and an unreasonable risk to the person's health.

[*2] SECTION 2. IC 10-1-9-11 IS AMENDED TO READ AS FOLLOWS (EFFECTIVE JULY 1, 2001): Sec. 11. [A> (A) <A] The superintendent may issue specific guidelines relating to procedures for
DNA sample collection and shipment within Indiana for DNA identification testing.

[A> (B) THE SUPERINTENDENT SHALL ISSUE SPECIFIC GUIDELINES RELATED TO PROCEDURES FOR
DNA SAMPLE COLLECTION AND SHIPMENT UNDER SECTION 10(D)(2) OF THIS CHAPTER. THE SUPERINTENDENT SHALL PROVIDE EACH COUNTY SHERIFF WITH THE GUIDELINES ISSUED UNDER THIS SUBSECTION. A COUNTY SHERIFF SHALL COLLECT AND SHIP DNA SAMPLES IN COMPLIANCE WITH THE GUIDELINES ISSUED UNDER THIS SUBSECTION. <A]

[A> (C) THE SUPERINTENDENT MAY DELAY THE IMPLEMENTATION OF THE COLLECTION OF
DNA SAMPLES UNDER SECTION 10(D)(2) OF THIS CHAPTER IN ONE (1) OR MORE COUNTIES UNTIL THE EARLIER OF THE FOLLOWING: <A]

[A> (1) A DATE SET BY THE SUPERINTENDENT. <A]

[A> (2) THE DATE FUNDING BECOMES AVAILABLE BY GRANT THROUGH THE CRIMINAL JUSTICE INSTITUTE. <A]

[A> IF THE SUPERINTENDENT DELAYS IMPLEMENTATION OF SECTION 10(D)(2) OF THIS CHAPTER OR TERMINATES A DELAY UNDER SECTION 10(D)(2) OF THIS CHAPTER IN ANY COUNTY, THE SUPERINTENDENT SHALL NOTIFY THE COUNTY SHERIFF IN WRITING OF THE SUPERINTENDENT'S ACTION. <A]

[A> (D) IN DEVELOPING GUIDELINES UNDER SUBSECTION (B), THE SUPERINTENDENT SHALL CONSULT WITH AN ADVISORY COMMITTEE CONSISTING OF THE FOLLOWING PERSONS: <A]

[A> (1) A COUNTY SHERIFF APPOINTED BY THE GOVERNOR OR THE DESIGNEE OF THE APPOINTED COUNTY SHERIFF. <A]

[A> (2) THE EXECUTIVE DIRECTOR OF THE PROSECUTING ATTORNEYS COUNCIL OF INDIANA ESTABLISHED BY IC 33-14-8-1 OR THE DESIGNEE OF THE EXECUTIVE DIRECTOR. <A]

[A> THIS SUBSECTION EXPIRES JULY 1, 2003. <A]

[*3] SECTION 3. (EFFECTIVE UPON PASSAGE) [A> (A) THE DEFINITIONS IN IC 10-1-9 APPLY THROUGHOUT THIS SECTION. <A]

[A> (B) THE SUPERINTENDENT MAY DEVELOP AND ISSUE GUIDELINES UNDER IC 10-1-9-11, AS AMENDED BY THIS ACT, AT ANY TIME AFTER THE EFFECTIVE DATE OF THIS SECTION. <A]

[A> (C) NOT LATER THAN SEPTEMBER 1, 2001, THE SUPERINTENDENT SHALL DESIGNATE AT LEAST THREE (3) COUNTIES TO IMPLEMENT IC 10-1-9-10(D)(2), AS AMENDED BY THIS ACT, FOR OFFENDERS CONVICTED AFTER AUGUST 31, 2001. THE SUPERINTENDENT SHALL EVALUATE THE MANNER IN WHICH IC 10-1-9-10(D)(2), AS AMENDED BY THIS ACT, IS IMPLEMENTED. NOT LATER THAN DECEMBER 31, 2001, THE SUPERINTENDENT SHALL PROVIDE THE EXECUTIVE DIRECTOR OF THE LEGISLATIVE SERVICES AGENCY WITH A WRITTEN REPORT THAT INCLUDES AT LEAST THE FOLLOWING: <A]

[A> (1) A STATEMENT INDICATING WHICH COUNTIES HAVE IMPLEMENTED IC 10-1-9-10(D)(2), AS AMENDED BY THIS ACT. <A]

[A> (2) A DESCRIPTION OF THE PROCESS USED TO COLLECT AND SHIP
DNA SAMPLES FROM THE COUNTIES IN WHICH IC 10-1-9-10(D)(2), AS AMENDED BY THIS ACT, HAS BEEN IMPLEMENTED. <A]

[A> (3) AN ANALYSIS OF ANY PROBLEMS ENCOUNTERED IN THE IMPLEMENTATION OF IC 10-1-9-10(D)(2), AS AMENDED BY THIS ACT. <A]

[A> (4) AN ANALYSIS OF ANY PROBLEMS THAT MAY BE ENCOUNTERED IN IMPLEMENTATION OF IC 10-1-9-10(D)(2), AS AMENDED BY THIS ACT, ON A STATEWIDE BASIS. <A]

[A> (5) SPECIFIC RECOMMENDATIONS FOR LEGISLATIVE ACTION NEEDED TO MORE EFFICIENTLY AND EFFECTIVELY IMPLEMENT IC 10-1-9-10(D)(2), AS AMENDED BY THIS ACT. <A]

[A> (D) THIS SECTION EXPIRES JULY 1, 2002. <A]

[*4] SECTION 4. [A> AN EMERGENCY IS DECLARED FOR THIS ACT. <A]

HISTORY:
Approved by the Governor May 1, 2001.

SPONSOR:
Alexa


INDIANA ADVANCE LEGISLATIVE SERVICE
STATENET
Copyright © 2001 by Information for Public Affairs, Inc.

INDIANA 112TH GENERAL ASSEMBLY -- FIRST REGULAR SESSION

SENATE ENROLLED ACT NO. 80

2001 Ind. SEA 80
SYNOPSIS: AN ACT to amend the Indiana Code concerning criminal law and procedure.

NOTICE:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]
[D> Text within these symbols is deleted <D]

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Be it enacted by the General Assembly of the State of Indiana:

[*1] SECTION 1. IC 35-41-4-2, AS AMENDED BY P.L.9-2000, SECTION 1, IS AMENDED TO READ AS FOLLOWS (EFFECTIVE JULY 1, 2001): Sec. 2. (a) Except as otherwise provided in this section, a prosecution for an offense is barred unless it is commenced:

(1) within five (5) years after the commission of a Class B, Class C, or Class D felony; or

(2) within two (2) years after the commission of a misdemeanor.

[A> (B) A PROSECUTION FOR A CLASS B OR CLASS C FELONY THAT WOULD OTHERWISE BE BARRED UNDER THIS SECTION MAY BE COMMENCED WITHIN ONE (1) YEAR AFTER THE EARLIER OF THE DATE ON WHICH THE STATE: <A]

[A> (1) FIRST DISCOVERS THE IDENTITY OF THE OFFENDER WITH
DNA (DEOXYRIBONUCLEIC ACID) EVIDENCE; OR <A]

[A> (2) COULD HAVE DISCOVERED THE IDENTIFY OF THE OFFENDER WITH
DNA (DEOXYRIBONUCLEIC ACID) EVIDENCE BY THE EXERCISE OF DUE DILIGENCE. <A]

[A> HOWEVER, FOR A CLASS B OR CLASS C FELONY IN WHICH THE STATE FIRST DISCOVERED THE IDENTITY OF AN OFFENDER WITH
DNA (DEOXYRIBONUCLEIC ACID) EVIDENCE AFTER THE TIME OTHERWISE ALLOWED FOR PROSECUTION AND BEFORE JULY 1, 2001, THE ONE (1) YEAR PERIOD PROVIDED IN THIS SUBSECTION IS EXTENDED TO JULY 1, 2002. <A]

[A> (C) <A] A prosecution for a Class A felony may be commenced at any time.

[D> (c) <D] [A> (D) <A] A prosecution for murder may be commenced:

(1) at any time; and

(2) regardless of the amount of time that passes between:

(A) the date a person allegedly commits the elements of murder; and

(B) the date the alleged victim of the murder dies.

[D> (d) <D] [A> (E) <A] A prosecution for the following offenses is barred unless commenced before the date that the alleged victim of the offense reaches thirty-one (31) years of age:

(1) IC 35-42-4-3(a) (Child molesting).

(2) IC 35-42-4-5 (Vicarious sexual gratification).

(3) IC 35-42-4-6 (Child solicitation).

(4) IC 35-42-4-7 (Child seduction).

(5) IC 35-46-1-3 (Incest).

[D> (e) <D] [A> (F) <A] Notwithstanding subsection [D> (c)(1), <D] [A> (E)(1), <A] a prosecution for child molesting under IC 35-42-4-3(c) or IC 35-42-4-3(d) where a person who is at least sixteen (16) years of age allegedly commits the offense against a child who is not more than two (2) years younger than the older person, is barred unless commenced within five (5) years after the commission of the offense.

[D> (f) <D] [A> (G) <A] A prosecution for forgery of an instrument for payment of money, or for the uttering of a forged instrument, under IC 35-43-5-2, is barred unless it is commenced within five (5) years after the maturity of the instrument.

[D> (g) <D] [A> (H) <A] If a complaint, indictment, or information is dismissed because of an error, defect, insufficiency, or irregularity, a new prosecution may be commenced within ninety (90) days after the dismissal even if the period of limitation has expired at the time of dismissal, or will expire within ninety (90) days after the dismissal.

[D> (h) <D] [A> (I) <A] The period within which a prosecution must be commenced does not include any period in which:

(1) the accused person is not usually and publicly resident in Indiana or so conceals himself that process cannot be served on him;

(2) the accused person conceals evidence of the offense, and evidence sufficient to charge him with that offense is unknown to the prosecuting authority and could not have been discovered by that authority by exercise of due diligence; or

(3) the accused person is a person elected or appointed to office under statute or constitution, if the offense charged is theft or conversion of public funds or bribery while in public office.

[D> (i) <D] [A> (J) <A] For purposes of tolling the period of limitation only, a prosecution is considered commenced on the earliest of these dates:

(1) The date of filing of an indictment, information, or complaint before a court having jurisdiction.

(2) The date of issuance of a valid arrest warrant.

(3) The date of arrest of the accused person by a law enforcement officer without a warrant, if the officer has authority to make the arrest.

[D> (j) <D] [A> (K) <A] A prosecution is considered timely commenced for any offense to which the defendant enters a plea of guilty, notwithstanding that the period of limitation has expired.

[*2] SECTION 2. (EFFECTIVE JULY 1, 2001) [A> THE AMENDMENTS TO IC 35-41-4-2 MADE BY THIS ACT APPLY TO ALL CRIMES REGARDLESS OF WHETHER THE CRIME WAS COMMITTED BEFORE, ON, OR AFTER JULY 1, 2001. <A]

HISTORY:
Approved by the Governor May 1, 2001.

SPONSOR:
Zakas




INDIANA ADVANCE LEGISLATIVE SERVICE
STATENET
Copyright © 2001 by Information for Public Affairs, Inc.

INDIANA 112TH GENERAL ASSEMBLY -- FIRST REGULAR SESSION

SENATE ENROLLED ACT NO. 81

2001 Ind. SEA 81
SYNOPSIS: AN ACT to amend the Indiana Code concerning criminal law and procedure.

NOTICE:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]

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Be it enacted by the General Assembly of the State of Indiana:

[*1] SECTION 1. IC 10-1-9-17 IS AMENDED TO READ AS FOLLOWS (EFFECTIVE JULY 1, 2001): Sec. 17. A laboratory conducting forensic
DNA analysis in Indiana may disclose or allow access to collected DNA samples and DNA analysis results only under the following circumstances:

(1) To criminal justice agencies for law enforcement identification purposes.

(2) To defense counsel for criminal defense purposes.

(3) Upon authorization by a court or statute.

(4) For a population statistics data base, identification research and protocol development, or quality control purposes, but only if personal identifying information is removed.

[A> (5) FOR PURPOSES OF POSTCONVICTION
DNA TESTING AND ANALYSIS UNDER IC 35-38-7. <A]

[*2] SECTION 2. IC 35-38-7 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS (EFFECTIVE JULY 1, 2001):

[A> CHAPTER 7. POSTCONVICTION
DNA TESTING AND ANALYSIS <A]

[A> SEC. 1. THIS CHAPTER APPLIES ONLY TO AN OFFENSE THAT IS ANY OF THE FOLLOWING: <A]

[A> (1) MURDER. <A]

[A> (2) A CLASS A FELONY. <A]

[A> (3) A CLASS B FELONY. <A]

[A> (4) A CLASS C FELONY. <A]

[A> SEC. 2. AS USED IN THIS CHAPTER, "
DNA" REFERS TO DEOXYRIBONUCLEIC ACID. <A]

[A> SEC. 3. AS USED IN THIS CHAPTER, "OFFENSE" MEANS TO A FELONY TO WHICH A PETITION UNDER THIS CHAPTER RELATES. <A]

[A> SEC. 4. AS USED IN THIS CHAPTER, "VICTIM" MEANS AN INDIVIDUAL WHO WOULD BE ENTITLED UNDER IC 35-40-5-8 TO RECEIVE INFORMATION ABOUT A RELEASE OF THE PETITIONER. <A]

[A> SEC. 5. A PERSON WHO WAS CONVICTED OF AND SENTENCED FOR AN OFFENSE MAY FILE A WRITTEN PETITION WITH THE COURT THAT SENTENCED THE PETITIONER FOR THE OFFENSE TO REQUIRE THE FORENSIC
DNA TESTING AND ANALYSIS OF ANY EVIDENCE THAT: <A]

[A> (1) IS: <A]

[A> (A) IN THE POSSESSION OR CONTROL OF A COURT OR THE STATE; OR <A]

[A> (B) OTHERWISE CONTAINED IN THE INDIANA
DNA DATA BASE ESTABLISHED UNDER IC 10-1-9; <A]

[A> (2) IS RELATED TO THE INVESTIGATION OR PROSECUTION THAT RESULTED IN THE PERSON'S CONVICTION; AND <A]

[A> (3) MAY CONTAIN BIOLOGICAL EVIDENCE. <A]

[A> SEC. 6. A PETITIONER MUST GIVE NOTICE OF THE PETITION TO THE PROSECUTING ATTORNEY FOR THE COUNTY WHERE THE OFFENSE WAS ALLEGEDLY COMMITTED. <A]

[A> SEC. 7. THE COURT SHALL GIVE THE PROSECUTING ATTORNEY AN OPPORTUNITY TO RESPOND TO THE PETITION. THE COURT MAY, IN ITS DISCRETION, ORDER A HEARING ON THE PETITION. <A]

[A> SEC. 8. AFTER COMPLYING WITH SECTION 7 OF THIS CHAPTER, THE COURT SHALL DETERMINE WHETHER THE PETITIONER HAS PRESENTED PRIMA FACIE PROOF OF THE FOLLOWING: <A]

[A> (1) THAT THE EVIDENCE SOUGHT TO BE TESTED IS MATERIAL TO IDENTIFYING THE PETITIONER AS: <A]

[A> (A) THE PERPETRATOR OF; OR <A]

[A> (B) AN ACCOMPLICE TO; <A]

[A> THE OFFENSE THAT RESULTED IN THE PETITIONER'S CONVICTION. <A]

[A> (2) THAT A SAMPLE OF THE EVIDENCE THAT THE PETITIONER SEEKS TO SUBJECT TO
DNA TESTING AND ANALYSIS IS IN THE POSSESSION OR CONTROL OF EITHER: <A]

[A> (A) THE STATE OR A COURT; OR <A]

[A> (B) ANOTHER PERSON, AND, IF THIS CLAUSE APPLIES, THAT A SUFFICIENT CHAIN OF CUSTODY FOR THE EVIDENCE EXISTS TO SUGGEST THAT THE EVIDENCE HAS NOT BEEN SUBSTITUTED, TAMPERED WITH, REPLACED, CONTAMINATED, OR DEGRADED IN ANY MATERIAL ASPECT. <A]

[A> (3) THE EVIDENCE SOUGHT TO BE TESTED: <A]

[A> (A) WAS NOT PREVIOUSLY TESTED; OR <A]

[A> (B) WAS TESTED, BUT THE REQUESTED
DNA TESTING AND ANALYSIS WILL: <A]

[A> (I) PROVIDE RESULTS THAT ARE REASONABLY MORE DISCRIMINATING AND PROBATIVE OF THE IDENTITY OF THE PERPETRATOR OR ACCOMPLICE; OR <A]

[A> (II) HAVE A REASONABLE PROBABILITY OF CONTRADICTING PRIOR TEST RESULTS. <A]

[A> (4) A REASONABLE PROBABILITY EXISTS THAT THE PETITIONER WOULD NOT HAVE: <A]

[A> (A) BEEN: <A]

[A> (I) PROSECUTED FOR; OR <A]

[A> (II) CONVICTED OF; <A]

[A> THE OFFENSE; OR <A]

[A> (B) RECEIVED AS SEVERE A SENTENCE FOR THE OFFENSE; <A]

[A> IF EXCULPATORY RESULTS HAD BEEN OBTAINED THROUGH THE REQUESTED
DNA TESTING AND ANALYSIS. <A]

[A> SEC. 9. IF THE COURT MAKES THE FINDINGS DESCRIBED IN SECTION 8(1), 8(2), 8(3), AND 8(4) OF THIS CHAPTER, THE COURT SHALL ORDER
DNA TESTING AND ANALYSIS OF THE EVIDENCE. <A]

[A> SEC. 10. IF THE COURT ORDERS
DNA TESTING AND ANALYSIS UNDER SECTION 9 OF THIS CHAPTER, THE COURT SHALL ORDER THE METHOD AND RESPONSIBILITY FOR THE PAYMENT OF ANY COSTS ASSOCIATED WITH THE DNA TESTING AND ANALYSIS. <A]

[A> SEC. 11. THE COURT MAY APPOINT DEFENSE COUNSEL FOR THE PERSON WHO WAS CONVICTED OF THE OFFENSE AT ANY TIME DURING ANY PROCEEDINGS UNDER THIS CHAPTER IF THE PERSON IS INDIGENT. <A]

[A> SEC. 12. IF THE COURT ORDERS
DNA TESTING AND ANALYSIS UNDER THIS CHAPTER, THE COURT SHALL SELECT A LABORATORY THAT MEETS THE QUALITY ASSURANCE AND PROFICIENCY TESTING STANDARDS APPLICABLE TO LABORATORIES CONDUCTING FORENSIC DNA ANALYSIS UNDER IC 10-1-9. <A]

[A> SEC. 13. (A) IF A PROSECUTING ATTORNEY OR DEFENSE COUNSEL HAS PREVIOUSLY SUBJECTED RELEVANT EVIDENCE TO
DNA TESTING AND ANALYSIS, THE COURT MAY ORDER THE PROSECUTING ATTORNEY OR DEFENSE COUNSEL TO PROVIDE ALL THE PARTIES AND THE COURT WITH ACCESS TO THE LABORATORY REPORTS THAT WERE PREPARED IN CONNECTION WITH THE TESTING AND ANALYSIS, INCLUDING UNDERLYING DATA AND LABORATORY NOTES. <A]

[A> (B) IF THE COURT ORDERS
DNA TESTING AND ANALYSIS UNDER THIS CHAPTER, THE COURT: <A]

[A> (1) SHALL ORDER THE PRODUCTION OF ANY LABORATORY REPORTS THAT ARE PREPARED IN CONNECTION WITH THE TESTING AND ANALYSIS; AND <A]

[A> (2) MAY ORDER THE PRODUCTION OF ANY UNDERLYING DATA AND LABORATORY NOTES. <A]

[A> SEC. 14. IF A PETITION FOR
DNA TESTING AND ANALYSIS IS FILED UNDER THIS CHAPTER: <A]

[A> (1) THE COURT SHALL ORDER THE STATE TO PRESERVE DURING THE PENDENCY OF THE PROCEEDING ALL EVIDENCE IN THE STATE'S POSSESSION OR CONTROL THAT COULD BE SUBJECTED TO
DNA TESTING AND ANALYSIS; <A]

[A> (2) THE STATE SHALL: <A]

[A> (A) PREPARE AN INVENTORY OF THE EVIDENCE IN THE POSSESSION OR CONTROL OF THE STATE THAT COULD BE SUBJECTED TO
DNA TESTING AND ANALYSIS; AND <A]

[A> (B) SUBMIT A COPY OF THE INVENTORY TO DEFENSE COUNSEL AND THE COURT; AND <A]

[A> (3) IF EVIDENCE IS INTENTIONALLY DESTROYED AFTER THE COURT ORDERS ITS PRESERVATION, THE COURT MAY IMPOSE APPROPRIATE SANCTIONS. <A]

[A> SEC. 15. (A) THE COURT MAY MAKE ANY OTHER ORDERS UNDER THIS CHAPTER THAT THE COURT CONSIDERS APPROPRIATE, INCLUDING DESIGNATING ANY OF THE FOLLOWING: <A]

[A> (1) THE TYPE OF
DNA TESTING AND ANALYSIS TO BE USED. <A]

[A> (2) THAT THE
DNA TESTING AND ANALYSIS SATISFIES THE PERTINENT EVIDENTIARY RULES CONCERNING THE ADMISSION OF SCIENTIFIC EVIDENCE OR TESTIMONY IN THE INDIANA RULES OF EVIDENCE. <A]

[A> (3) THE PROCEDURES TO BE FOLLOWED DURING THE
DNA TESTING AND ANALYSIS. <A]

[A> (4) THE PRESERVATION OF SOME OF THE SAMPLE FOR REPLICATING THE
DNA TESTING AND ANALYSIS. <A]

[A> (5) ELIMINATION SAMPLES FROM THIRD PARTIES. <A]

[A> (B) ELIMINATION SAMPLES FROM A THIRD PARTY SHALL BE REQUIRED ONLY IF: <A]

[A> (1) THE PETITIONER HAS BEEN EXCLUDED AS THE PERPETRATOR OR ACCOMPLICE BY
DNA TESTING AND ANALYSIS; OR <A]

[A> (2) EXTRAORDINARY CIRCUMSTANCES ARE SHOWN TO REQUIRE THE
DNA TEST AND ANALYSIS. <A]

[A> IF THE COURT ORDERS ELIMINATION SAMPLES FROM A THIRD PARTY, THE COURT SHALL OFFER THE THIRD PARTY THE CHOICE TO PROVIDE A SAMPLE THAT CAN BE OBTAINED THROUGH THE LEAST INTRUSIVE METHOD POSSIBLE. <A]

[A> SEC. 16. (A) THE PROSECUTING ATTORNEY MAY PROVIDE NOTIFICATION UNDER THE PROCEDURES OF IC 35-40-12 WHEN: <A]

[A> (1) THE PETITIONER FIRST FILES A PETITION FOR
DNA TESTING AND ANALYSIS UNDER THIS CHAPTER; AND <A]

[A> (2) THE PROSECUTING ATTORNEY KNOWS THE NAME AND ADDRESS OF THE VICTIM. <A]

[A> IF THE COURT GRANTS A PETITION FOR
DNA TESTING AND ANALYSIS, THE PROSECUTING ATTORNEY SHALL PROVIDE NOTIFICATION IF THE NAME AND ADDRESS OF THE VICTIM ARE KNOWN. A VICTIM SHALL BE NOTIFIED OF THE RESULTS OF THE DNA TESTING AND ANALYSIS. <A]

[A> (B) THE NAME AND ADDRESS OF A VICTIM ARE CONFIDENTIAL FOR PURPOSES OF THIS CHAPTER. <A]

[A> (C) NOTIFICATION OF THIRD PARTIES REGARDING A COURT ORDER TO PROVIDE ELIMINATION SAMPLES SHALL BE THROUGH THE PROSECUTING ATTORNEY. <A]

[A> (D) IF A PETITIONER IS EXONERATED BY
DNA TESTING AND ANALYSIS, THE VICTIM SHALL BE NOTIFIED BEFORE THE PETITIONER'S RELEASE. <A]

[A> SEC. 17. REGARDLESS OF WHETHER A PETITION HAS BEEN FILED UNDER THIS CHAPTER, IF: <A]

[A> (1) A PROSECUTING ATTORNEY DECIDES TO ORDER FORENSIC
DNA TESTING OR ANALYSIS THAT WAS NOT PREVIOUSLY PERFORMED ON BIOLOGICAL EVIDENCE THAT IS RELATED TO THE INVESTIGATION OR PROSECUTION THAT RESULTED IN A PERSON'S CONVICTION; AND <A]

[A> (2) THE TESTING WILL CONSUME THE REMAINING BIOLOGICAL EVIDENCE; <A]

[A> THE PROSECUTING ATTORNEY MUST NOTIFY THE PERSON OF THE PROPOSED
DNA TESTING AND ANALYSIS. <A]

[A> SEC. 18. IF THE RESULTS OF THE POSTCONVICTION
DNA TESTING AND ANALYSIS ARE NOT FAVORABLE TO THE PERSON WHO WAS CONVICTED OF THE OFFENSE, THE COURT: <A]

[A> (1) SHALL DISMISS THE PERSON'S PETITION; AND <A]

[A> (2) MAY MAKE ANY FURTHER ORDERS THAT THE COURT DETERMINES TO BE APPROPRIATE, INCLUDING ANY OF THE FOLLOWING: <A]

[A> (A) AN ORDER PROVIDING FOR NOTIFICATION OF THE PAROLE BOARD OR A PROBATION DEPARTMENT. <A]

[A> (B) AN ORDER REQUESTING THAT THE PETITIONER'S SAMPLE BE ADDED TO THE INDIANA DATA BASE ESTABLISHED UNDER IC 10-1-9. <A]

[A> SEC. 19. NOTWITHSTANDING ANY LAW THAT WOULD BAR A TRIAL AS UNTIMELY, IF THE RESULTS OF POSTCONVICTION
DNA TESTING AND ANALYSIS ARE FAVORABLE TO THE PERSON WHO WAS CONVICTED OF THE OFFENSE, THE COURT SHALL ORDER ANY OF THE FOLLOWING: <A]

[A> (1) UPON MOTION OF THE PROSECUTING ATTORNEY AND GOOD CAUSE SHOWN, ORDER RETESTING OF THE IDENTIFIED BIOLOGICAL MATERIAL AND STAY THE PETITIONER'S MOTION FOR A NEW TRIAL PENDING THE RESULTS OF THE
DNA RETESTING. <A]

[A> (2) UPON JOINT PETITION OF THE PROSECUTING ATTORNEY AND THE PETITIONER, ORDER THE RELEASE OF THE PERSON. <A]

[A> (3) ORDER A NEW TRIAL OR ANY OTHER RELIEF AS MAY BE APPROPRIATE UNDER INDIANA LAW OR COURT RULE. <A]

HISTORY:
Approved by the Governor May 1, 2001.

SPONSOR:
Zakas



TITLE I. STATE SOVEREIGNTY AND MANAGEMENT
SUBTITLE 4. EXECUTIVE BRANCH
CHAPTER 13. ATTORNEY GENERAL
SUBCHAPTER I. GENERAL PROVISIONS

GO TO THE CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Iowa Code § 13.10 (2001)
13.10 Physical criminal evidence --
DNA profiling.

1. The attorney general shall adopt rules in consultation with the division of criminal investigation, department of public safety, for the purpose of classifying felonies and indictable misdemeanors which shall require the offender to submit a physical specimen for
DNA profiling upon confinement in or prior to release from a county jail, upon commitment to the custody of the director of the department of corrections, or prior to discharge of sentence, or as a condition of probation. Factors to be considered shall include the deterrent effect of DNA profiling, the likelihood of repeated violations, and the seriousness of the offense. The offenses that require the offender to submit a physical specimen for DNA profiling shall include but are not limited to the following:

a. Murder in violation of section 707.2 or 707.3.

b. Attempt to commit murder in violation of section 707.11.

c. Kidnapping in violation of section 710.1, 710.2, or 710.3.

d. Sexual abuse in violation of section 709.2, 709.3, or 709.4.

e. Assault with intent to commit sexual abuse in violation of section 709.11.

f. Assault while participating in a felony in violation of section 708.3.

g. Burglary in the first degree in violation of section 713.3.

2. The division of criminal investigation shall carry out
DNA profiling of submitted physical specimens. The division may contract with private entities for DNA profiling. "DNA profiling" means the procedure established by the division of criminal investigation, department of public safety, for determining a person's genetic identity.

HISTORY: 89 Acts, ch 156, § 1; 2000 Acts, ch 1122, § 1

NOTES:
Section Notes:

Section amended

TITLE XVI. CRIMINAL LAW AND PROCEDURE
SUBTITLE 3. CRIMINAL CORRECTIONS
CHAPTER 901. JUDGMENT AND SENTENCING PROCEDURES

GO TO THE CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Iowa Code § 901.5 (2001)
901.5 Pronouncing judgment and sentence.

After receiving and examining all pertinent information, including the presentence investigation report and victim impact statements, if any, the court shall consider the following sentencing options. The court shall determine which of them is authorized by law for the offense, and of the authorized sentences, which of them or which combination of them, in the discretion of the court, will provide maximum opportunity for the rehabilitation of the defendant, and for the protection of the community from further offenses by the defendant and others.

At the time fixed by the court for pronouncement of judgment and sentence, the court shall act accordingly:

1. If authorized by section 907.3, the court may defer judgment and sentence for an indefinite period in accordance with chapter 907.

2. If the defendant is not an habitual offender as defined by section 902.8, the court may pronounce judgment and impose a fine.

3. The court may pronounce judgment and impose a fine or sentence the defendant to confinement, or both, and suspend the execution of the sentence or any part of it as provided in chapter 907.

4. The court may pronounce judgment and impose a fine or sentence the defendant to confinement, or both.

5. If authorized by section 907.3, the court may defer the sentence and assign the defendant to the judicial district department of correctional services.

6. The court may pronounce judgment and sentence the defendant to confinement and then reconsider the sentence as provided by section 902.4 or 903.2.

7. The court shall inform the defendant of the mandatory minimum sentence, if one is applicable.

8. The court may order the defendant to complete any treatment indicated by a substance abuse evaluation ordered pursuant to section 901.4A or any other section.

8A.
a. The court shall order DNA profiling of a defendant convicted of an offense that requires profiling under section 13.10.

b. Notwithstanding section 13.10, the court may order the defendant to provide a physical specimen to be submitted for DNA profiling if appropriate. In determining the appropriateness of ordering DNA profiling, the court shall consider the deterrent effect of DNA profiling, the likelihood of repeated offenses by the defendant, and the seriousness of the offense.

9. If the defendant is being sentenced for an aggravated misdemeanor or a felony, the court shall publicly announce the following:

a. That the defendant's term of incarceration may be reduced from the maximum sentence because of statutory earned time, work credits, and program credits.

b. That the defendant may be eligible for parole before the sentence is discharged.

c. In the case of multiple sentences, whether the sentences shall be served consecutively or concurrently.

10. In addition to any sentence imposed pursuant to chapter 902 or 903, the court shall order the state department of transportation to revoke the defendant's driver's license or motor vehicle operating privilege for a period of one hundred eighty days, or to delay the issuance of a driver's license for one hundred eighty days after the person is first eligible if the defendant has not been issued a driver's license, and shall send a copy of the order in addition to the notice of conviction required under section 124.412, 126.26, or 453B.16, to the state department of transportation, if the defendant is being sentenced for any of the following offenses:

a. A controlled substance offense under section 124.401, 124.401A, 124.402, or 124.403.

b. A drug or drug-related offense under section 126.3.

c. A controlled substance tax offense under chapter 453B.

If the person's operating privileges are suspended or revoked at the time of sentencing, the order shall provide that the one hundred eighty-day revocation period shall not begin until all other suspensions or revocations have terminated. Any order under this section shall also provide that the department shall not issue a temporary restricted license to the defendant during the revocation period, without further order by the court.

11. In addition to any sentence or other penalty imposed against the defendant for an offense under chapter 124, the court shall consider the provisions of 21 U.S.C. § 862, regarding the denial of federal benefits to drug traffickers and possessors convicted under state or federal law, and may enter an order specifying the range and scope of benefits to be denied to the defendant, according to the provisions of 21 U.S.C. § 862. For the purposes of this subsection,
"federal benefit" means the issuance of any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or through the appropriation of funds of the United States, but does not include any retirement, welfare, social security, health, disability, veterans, public housing, or similar benefit for which payments or services are required for eligibility. The supreme court may adopt rules establishing sentencing guidelines consistent with this subsection and 21 U.S.C. § 862. The clerk of the district court shall send a copy of any order issued pursuant to this subsection to the denial of federal benefits program of the United States department of justice, along with any other forms and information required by the department.

12. In addition to any sentence or other penalty imposed against the defendant for an offense under chapter 124, the court shall consider the denial of state benefits to the defendant, and may enter an order specifying the range and scope of benefits to be denied to the defendant, comparable to the federal benefits denied under subsection 11. For the purposes of this subsection,
"state benefit" means the issuance of any grant, contract, loan, professional license, or commercial license provided by a state agency, department, program, or otherwise through the appropriation of funds of the state, but does not include any retirement, welfare, health, disability, veterans, public housing, or similar benefit. The supreme court may adopt rules establishing sentencing guidelines consistent with this subsection and comparable to the guidelines for denial of federal benefits in 21 U.S.C. § 862. The clerk of the district court shall send a copy of any order issued pursuant to this subsection to each state agency, department, or program required to deny benefits pursuant to such an order.

HISTORY: [C79, 81, § 901.5]

84 Acts, ch 1063, § 1; 86 Acts, ch 1178, § 3; 90 Acts, ch 1251, § 65; 92 Acts, ch 1023, § 1; 96 Acts, ch 1218, § 68; 98 Acts, ch 1073, § 9; 98 Acts, ch 1138, § 26; 2000 Acts, ch 1122, § 3; 2000 Acts, ch 1173, § 2, 10

NOTES:
Section Notes:

Surcharge on penalty, chapter 911

2000 amendment to subsection 9, paragraph a, takes effect January 1, 2000; 2000 Acts, ch 1173, § 10

NEW subsection 8A

Subsection 9, paragraph a amended


TITLE XVI. CRIMINAL LAW AND PROCEDURE
SUBTITLE 3. CRIMINAL CORRECTIONS
CHAPTER 906. PAROLES AND WORK RELEASE

GO TO THE CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Iowa Code § 906.4 (2001)
906.4 Standards for release on parole or work release -- community service -- academic achievement.

A parole or work release shall be ordered only for the best interest of society and the offender, not as an award of clemency. The board shall release on parole or work release any person whom it has the power to so release, when in its opinion there is reasonable probability that the person can be released without detriment to the community or to the person. A person's release is not a detriment to the community or the person if the person is able and willing to fulfill the obligations of a law-abiding citizen, in the board's determination.

Notwithstanding section 13.10, the board may order the defendant to provide a physical specimen to be submitted for
DNA profiling as a condition of parole or work release, if appropriate. In determining the appropriateness of ordering DNA profiling, the board shall consider the deterrent effect of DNA profiling, the likelihood of repeated offenses by the defendant, and the seriousness of the offense.

The board may establish as a condition of a person's parole or work release that the person perform a specified number of hours of unpaid community service. The board shall not make community service a uniform or mandatory requirement for all or substantially all parolees or work release inmates but shall exercise discretion in ordering community service as a condition of parole or work release. The board shall report to the general assembly on the implementation of community service as a condition of parole or work release. The report shall be submitted on or before January 1, 1991.

The board may, effective July 1, 1997, subject to such exceptions as may be deemed necessary by the board, require each inmate who is physically and mentally capable to demonstrate functional literacy competence at or above the sixth grade level or make progress towards completion of the requirements for a high school equivalency diploma under chapter 259A prior to release of the inmate on parole or work release.

HISTORY: [C79, 81, § 906.4]

86 Acts, ch 1245, § 1520; 89 Acts, ch 156, § 3; 90 Acts, ch 1251, § 68; 95 Acts, ch 179, § 2; 2000 Acts, ch 1122, § 4

NOTES:
Chapter Notes:

See interstate probation and parole compact, chapter 907A

Section Notes:

Unnumbered paragraph 2 amended


1153, 1154 (2000).


 

KANSAS

CHAPTER 21. CRIMES AND PUNISHMENTS
ARTICLE 25. IDENTIFICATION AND DETECTION OF CRIMES AND CRIMINALS

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

K.S.A. § 21-2511 (2000)
21-2511. Collection of specimens of fingerprints, blood and saliva from certain persons; Kansas bureau of investigation, powers and duties.

(a) Any person convicted as an adult or adjudicated as a juvenile offender because of the commission of any offense which requires such person to register as an offender pursuant to the Kansas offender registration act, K.S.A. 22-4901 et seq., or a violation of subsection (a)(1) of K.S.A. 21-3505, 21-3508, 21-3602 or 21-3609 and amendments thereto, including an attempt, conspiracy or criminal solicitation, as defined in K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of any such offenses provided in this subsection regardless of the sentence imposed, shall be required to submit specimens of blood and saliva to the Kansas bureau of investigation in accordance with the provisions of this act, if such person is:

(1) Convicted as an adult or adjudicated as a juvenile offender because of the commission of a crime specified in subsection (a) on or after the effective date of this act;

(2) ordered institutionalized as a result of being convicted as an adult or adjudicated as a juvenile offender because of the commission of a crime specified in subsection (a) on or after the effective date of this act; or

(3) convicted as an adult or adjudicated as a juvenile offender because of the commission of a crime specified in this subsection before the effective date of this act and is presently confined as a result of such conviction or adjudication in any state correctional facility or county jail or is presently serving a sentence under K.S.A. 21-4603, 22-3717 or 38-1663, and amendments thereto.

(b) Notwithstanding any other provision of law, the Kansas bureau of investigation is authorized to obtain fingerprints and other identifiers for all persons, whether juveniles or adults, covered by this act.

(c) Any person required by paragraphs (a)(1) and (a)(2) to provide specimens of blood and saliva shall be ordered by the court to have specimens of blood and saliva collected within 10 days after sentencing or adjudication:

(1) If placed directly on probation, that person must provide specimens of blood and saliva, at a collection site designated by the Kansas bureau of investigation. Failure to cooperate with the collection of the specimens and any deliberate act by that person intended to impede, delay or stop the collection of the specimens shall be punishable as contempt of court and constitute grounds to revoke probation;

(2) if sentenced to the secretary of corrections, the specimens of blood and saliva will be obtained immediately upon arrival at the Topeka correctional facility; or

(3) if a juvenile offender is placed in the custody of the commissioner of juvenile justice, in a youth residential facility or in a juvenile correctional facility, the specimens of blood and saliva will be obtained immediately upon arrival.

(d) Any person required by paragraph (a)(3) to provide specimens of blood and saliva shall be required to provide such samples prior to final discharge or conditional release at a collection site designated by the Kansas bureau of investigation.

(e) The Kansas bureau of investigation shall provide all specimen vials, mailing tubes, labels and instructions necessary for the collection of blood and saliva samples. The collection of samples shall be performed in a medically approved manner. No person authorized by this section to withdraw blood and collect saliva, and no person assisting in the collection of these samples shall be liable in any civil or criminal action when the act is performed in a reasonable manner according to generally accepted medical practices. The withdrawal of blood for purposes of this act may be performed only by: (1) A person licensed to practice medicine and surgery or a person acting under the supervision of any such licensed person; (2) a registered nurse or a licensed practical nurse; or (3) any qualified medical technician including, but not limited to, an emergency medical technician-intermediate or mobile intensive care technician, as those terms are defined in K.S.A. 65-6112, and amendments thereto, or a phlebotomist. The samples shall thereafter be forwarded to the Kansas bureau of investigation for analysis and categorizing into genetic marker groupings.

(f) The genetic marker groupings shall be maintained by the Kansas bureau of investigation. The Kansas bureau of investigation shall establish, implement and maintain a statewide automated personal identification system capable of, but not limited to, classifying, matching and storing analysis of
DNA (deoxyribonucleic acid) and other biological molecules. The genetic marker grouping analysis information and identification system as established by this act shall be compatible with the procedures specified by the federal bureau of investigation's combined DNA index system (CODIS). The Kansas bureau of investigation may participate in the CODIS program by sharing data and utilizing compatible test procedures, laboratory equipment, supplies and computer software.

(g) The genetic marker grouping analysis information obtained pursuant to this act shall be confidential and shall be released only to law enforcement officers of the United States, of other states or territories, of the insular possessions of the United States, or foreign countries duly authorized to receive the same, to all law enforcement officers of the state of Kansas and to all prosecutor's agencies.

(h) The Kansas bureau of investigation shall be the state central repository for all genetic marker grouping analysis information obtained pursuant to this act. The Kansas bureau of investigation may promulgate rules and regulations for the form and manner of the collection of blood and saliva samples and other procedures for the operation of this act. The provisions of the Kansas administrative procedure act shall apply to all actions taken under the rules and regulations so promulgated.

HISTORY: L. 1991, ch. 92, § 1; L. 1992, ch. 143, § 1; L. 1995, ch. 218, § 1; L. 1996, ch. 224, § 1; L. 1997, ch. 156, § 36; L. 1999, ch. 164, § 3; July 1.

NOTES:


REVISOR'S NOTE:

Section was also amended by L. 1996, ch. 229, § 22, but that version was repealed by L. 1997, ch. 156, § 115.

ATTORNEY GENERAL'S OPINIONS

Juveniles; collection of blood and saliva specimens; fingerprinting by KBI. 95-63.



CASE ANNOTATIONS

1. Review of constitutional challenges on several grounds to section's validity examined. Vanderlinden v. State of Kan., 874 F.Supp. 1210, 1213 (1995).

2. Collection of blood and saliva specimens from inmates convicted of certain offenses not unreasonable search and seizure. Schlicher v. (NFN) Peters 1 and 1, 103 F.3d 940, 941 (1996).

3. Defendant erroneously required to submit
DNA exemplars hereunder but requirement upheld since court could have relied on 22-4907. State v. Patterson, 25 K.A.2d 245, 252, 963 P.2d 436 (1998).


CHAPTER 22. CRIMINAL PROCEDURE
KANSAS CODE OF CRIMINAL PROCEDURE
ARTICLE 45. AID TO INDIGENT DEFENDANTS
INDIGENT DEFENSE SERVICES ACT

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

K.S.A. § 22-4508 (2000)
22-4508. Same; investigative, expert and other services; ex parte proceedings; compensation; claim, approval, payment.

An attorney other than a public defender who acts as counsel for a defendant who is financially unable to obtain investigative, expert or other services necessary to an adequate defense in the defendant's case may request them in an ex parte application addressed to the district court where the action is pending. Upon finding, after appropriate inquiry in the ex parte proceeding, that the services are necessary and that the defendant is financially unable to obtain them, the district court shall authorize counsel to obtain the services on behalf of the defendant. The district court may, in the interests of justice, and upon a finding that timely procurement of necessary services could not await prior authorization, ratify such services after they have been obtained. Within the standards and guidelines adopted by the state board of indigents' defense services, the district court shall determine reasonable compensation for the services and approve payment to the organization or person who rendered them upon the filing of a certified claim for compensation supported by a written statement specifying the time expended, services rendered, expenses incurred on behalf of the defendant, and the compensation received in the same case or for the same services from any other source. Payment shall be made in the manner provided in K.S.A. 22-4507 and amendments thereto.

HISTORY: L. 1969, ch. 291, § 8; L. 1982, ch. 142, § 18; L. 1984, ch. 133, § 1; July 1.

NOTES:


LAW REVIEW AND BAR JOURNAL REFERENCES:

"Forensic Psychiatry: Less Typical Applications," Roy B. Lacoursiere, M.D., 30 W.L.J. 29 (1990).

"Criminal Law: Marshaling the Defense--Indigent Defendants Guaranteed Psychiatric Assistance at Trial to Explain Battered Woman Syndrome Dunn v. Roberts, 963 F.2d 308 (10th Cir. 1992) ," Teresa Herdman, 32 W.L.J. 249, 252 (1993).



CASE ANNOTATIONS

1. Funds sought hereunder (62-3108) denied; evidence sought would have been inadmissible for purpose stated. State v. Thomas, 206 K. 603, 611, 481 P.2d 964.

2. Denial of application for investigative expert where amount of expense indefinite held not reversible error. State v. Frideaux, 207 K. 790, 487 P.2d 541.

3. Trial court determined funds requested for psychiatric testimony not "necessary"; sanity commission appointed; due process not violated. State v. Campbell, 210 K. 265, 274, 500 P.2d 21.

4. No abuse of discretion in denial of funds to hire expert to determine if community prejudice existed. State v. Frames, 213 K. 113, 118, 515 P.2d 751.

5. Applied; prosecution for aggravated kidnapping; defendant was provided with assistance of counsel and investigative assistance. State v. Dolack, 216 K. 622, 636, 533 P.2d 1282.

6. No error, under facts, in refusing to provide psychiatric services for defendant. State v. Bradford, 219 K. 336, 339, 548 P.2d 812.

7. Statute construed; defendant may make ex parte application for expert services, hearing, findings and payment. State v. Lee, 221 K. 109, 113, 558 P.2d 1096.

8. Psychiatric examination of indigent defendants relying on defense of insanity discussed. State v. Burnett, 222 K. 162, 563 P.2d 451.

9. No abuse of discretion by court in refusing to allow funds for expert witness. State v. King, 2 K.A.2d 503, 504, 582 P.2d 309.

10. Trial court did not abuse discretion in denying defendant supporting services; conviction affirmed. State v. Reynolds, 230 K. 532, 534, 639 P.2d 461 (1982).

11. No prejudicial error by trial court in failing to instruct physician by written order to perform mental examination of defendant. State v. Grauerholz, 232 K. 221, 226, 654 P.2d 395 (1982).

12. Funds for public survey considered; question of first impression on testimony by previously hypnotized witnesses dealt with at length. State v. Haislip, 237 K. 461, 484, 701 P.2d 909 (1985).

13. Trial court's ruling in denying funds for services of expert witness examined. State v. Dunn, 243 K. 414, 758 P.2d 718 (1988).

14. Denial of psychiatric treatment examined where alleged amnesia found not to affect competency to stand trial. State v. Owens, 248 K. 273, 282, 807 P.2d 101 (1991).

15. Trial court's denial of expenses for survey of community attitudes in motion for venue change held not abuse of discretion. State v. Mayberry, 248 K. 369, 380, 807 P.2d 86 (1991).

16. Denial of due process in failure to provide funds for expert services; mental condition of defendant significant factor in trial. Dunn v. Roberts, 768 F.Supp. 1442, 1447 (1991).

17. Denial of additional funds for expert and investigative services examined; extent of statute's application discussed. State v. Lumbrera, 252 K. 54, 62, 64, 845 P.2d 609 (1992).

18. Trial court's discretion in refusing to provide funds for
DNA testing examined. State v. Snodgrass, 252 K. 253, 264, 843 P.2d 720 (1992).

19. Denial of funds to hire psychiatric expert to explain battered woman's syndrome's relationship to intent violated due process. Dunn v. Roberts, 963 F.2d 308, 309, 310 (1992).

20. No error in trial court's denial of defendant's motion for independent examination of minor child victims. State v. Zuck, 21 K.A.2d 597, 607, 904 P.2d 1005 (1995).

21. No abuse of discretion in refusing request for investigative services to show principal witness committed subject and other murders. State v. Brown, 266 K. 563, 575, 973 P.2d 773 (1999).


CHAPTER 22. CRIMINAL PROCEDURE
KANSAS CODE OF CRIMINAL PROCEDURE
ARTICLE 49. OFFENDER REGISTRATION

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

K.S.A. § 22-4907 (2000)
22-4907. Information required in registration.

(a) Registration as required by this act shall consist of a form prepared by the Kansas bureau of investigation, which shall include a statement that the requirements provided in this section have been explained to the person, and shall be signed by the person. Such registration form shall include the following:

(1) Name;

(2) date and place of birth;

(3) offense or offenses committed, date of conviction or convictions obtained;

(4) city or county of conviction or convictions obtained;

(5) sex and age of victim;

(6) current address;

(7) social security number;

(8) identifying characteristics such as race, sex, age, hair and eye color, scars and blood type;

(9) occupation and name of employer;

(10) drivers license and vehicle information;

(11) documentation of any treatment received for a mental abnormality or personality disorder of the offender; for purposes of documenting the treatment received, sheriffs, prison officials and courts may rely on information that is readily available to them from existing records and the offender.

(12) anticipated future residence;

(13) a photograph; and

(14) fingerprints.

(b) (1) The offender shall also provide to the registering law enforcement agency
DNA exemplars, unless already on file.

(2) If the exemplars to be taken require the withdrawal of blood, such withdrawal may be performed only by: (A) A person licensed to practice medicine and surgery or a person acting under the supervision of any such licensed person;

(B) a registered nurse or a licensed practical nurse;

(C) any qualified medical technician; or

(D) a licensed phlebotomist.

(c) Unless the person has provided the information and completed and signed the registration form as provided in K.S.A. 22-4905 and amendments thereto within three days, the registering law enforcement agency shall forward the registration form to the Kansas bureau of investigation.

HISTORY: L. 1993, ch. 253, § 23; L. 1996, ch. 224, § 5; L. 1997, ch. 181, § 12; July 1.

NOTES:


LAW REVIEW AND BAR JOURNAL REFERENCES:

"Does Public Access to Sex Offender Registration Information Under the Kansas Sex Offender Registration Act Constitute Cruel and Unusual Punishment? State v. Scott, 961 P.2d 667 (Kan.1998) ," Marti Paulsen, 38 W.L.J. 727 (1999).



ATTORNEY GENERAL'S OPINIONS

Juvenile offenders; application of Kansas offender registration act and the juvenile offender information system. 97-101.



CASE ANNOTATIONS

1. Under facts, application of registration and notification provisions of KSORA (22-4901 et seq.) did not constitute cruel and unusual punishment. State v. Scott, 265 K. 1, 5, 961 P.2d 667 (1998).

2. Defendant erroneously required to submit
DNA exemplars under 21-2511 but requirement upheld since court could have acted hereunder. State v. Patterson, 25 K.A.2d 245, 252, 963 P.2d 436 (1998).

CHAPTER 60. PROCEDURE, CIVIL
ARTICLE 15. HABEAS CORPUS

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

K.S.A. § 60-1507 (2000)
60-1507. Prisoner in custody under sentence.

(a) Motion attacking sentence. A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence.

(b) Hearing and judgment. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. The court may entertain and determine such motion without requiring the production of the prisoner at the hearing. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence said prisoner or grant a new trial or correct the sentence as may appear appropriate.

(c) Successive motions. The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.

(d) Appeal. An appeal may be taken to the appellate court as provided by law from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.

(e) Exclusiveness of remedy. An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced said applicant, or that such court has denied said applicant relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of said applicant's detention.

HISTORY: L. 1963, ch. 303, 60-1507; L. 1976, ch. 251, § 24; Jan. 10, 1977.

NOTES:


REVISOR'S NOTE:

Considerations and review of section, see Kansas Benchbook, Kansas Judicial Council, pp. 246-249.



CROSS REFERENCES TO RELATED SECTIONS:

Appeals, see 60-2103.



RESEARCH AND PRACTICE AIDS:

Gard's Kansas C.C.P. 60-1507.

Vernon's Kansas C.C.P.--Fowks, Harvey & Thomas, 60-1507.

Vernon's Kansas Forms, C.C.P.--Hatcher prec. § 15.1, 15.56 et seq.

Criminal Laws 998(1) et seq.

C.J.S. Criminal Laws §§ 1612, 1613.



LAW REVIEW AND BAR JOURNAL REFERENCES:

"Highlights of the Kansas Code of Civil Procedure (1963)," Spencer A. Gard, 2 W.L.J. 199, 203 (1962).

"Some Comments on the New Code of Civil Procedure," Emmet A. Blaes, 12 K.L.R. 75, 78 (1963).

"Post Conviction Motions," J. Richard Foth, Arthur E. Palmer, 12 K.L.R. 493, 494, 496 (1964).

Case note on compensation of counsel for indigent defendant, James M. Whittier, 13 K.L.R. 423, 425 (1965).

Discussed in criticizing provision for appointment of counsel hereunder in Rule No. 121 of Kansas supreme court, Spencer A. Gard, 33 J.B.A.K. 273 (1964).

Case law concerning indigent's right to counsel, William M. Ferguson and Paul E. Wilson, 33 J.B.A.K. 16, 71, 72 (1964).

"Notes on Criminal Procedure in the State Courts," Frank R. Gray, 34 J.B.A.K. 316 (1965).

1963-65 survey of criminal law and procedure, Paul E. Wilson and George D. Blackwood, Jr., 14 K.L.R. 221, 231, 233, 238, 240 (1965).

"Appellate Counsel for the Indigent Accused," John F. Fontron, 6 W.L.J. 417, 419, 422 (1967).

"The Conflict Between Probation and the Right to Appeal in Kansas," Jerry L. Donnelly, 15 K.L.R. 569, 574 (1967).

"Survey of Kansas Law: Evidence," Spencer A. Gard, 16 K.L.R. 125, 129 (1967).

"Reducing Post-Conviction Litigation," Richard H. Seaton, 36 J.B.A.K. 99 (1967).

Judicial diminution of state remedies before consideration of federal habeas corpus, 37 J.B.A.K. 109, 110 (1968).

"The Kansas Sexual Offender Act and Its Administration," Lawrence A. Dimmitt, 8 W.L.J. 21, 39 (1968).

Similarity to federal statutes and more expansive state post-conviction procedures discussed, Michael L. Maxwell, 8 W.L.J. 248, 256, 257 (1969).

"Competency of Jurors Who Have Conscientious Scruples Against Capital Punishment," Russell LaVingne, Jr., 8 W.L.J. 352, 359 (1969).

"Federal Habeas Corpus and the State Prisoner," Michael L. Maxwell, 8 W.L.J. 248, 256 (1970).

Right to appeal on jurisdictional or other grounds after plea of guilty, Richard H. Seaton and Paul E. Wilson, 39 J.B.A.K. 97, 169 (1970).

Discussion of the duty of prosecution to disclose evidence, Michael A. Barbara, 10 W.L.J. 54, 57 (1970).

Comment concerning habitual criminal act and sentence increase upon second trial for same offense, John E. Caton, 11 W.L.J. 301 (1972).

Comment on indigent's right to a transcript of record, 20 K.L.R. 745, 755, 757, 766 (1972).

"Collateral Challenges to Criminal Convictions," Keith G. Meyer and Larry W. Yackle, 21 K.L.R. 259 (1973).

"Waiver of Juvenile Court Jurisdiction in Kansas," Fred N. Six and Kenneth W. Reeves, 22 K.L.R. 193, 202 (1974).

Survey of criminal procedure, Cynthia Hartman, 15 W.L.J. 350, 356, 357 (1976).

"Decisions, Decisions, Decisions," Terry L. Bullock, 17 W.L.J. 26, 28 (1977).

Comment on alibi statute, 17 W.L.J. 432, 436 (1978).

Effective assistance of counsel, 18 W.L.J. 635, 640, 641 (1978).

"Survey of Kansas Law: Evidence," Spencer A. Gard, 27 K.L.R. 225 (1979).

"Survey of Kansas Law: Criminal Law and Procedure," Keith G. Meyer, 27 K.L.R. 391, 422, 428 (1979).

"Criminal Procedure: Sufficiency of Evidence Now Reviewable in Habeas Corpus Proceeding," Mark Andrew Shaiken, 19 W.L.J. 616 (1980).

"Prosecutorial Misconduct in Closing Argument," Alan V. Johnson and Jeffrey S. Southard, 49 J.B.A.K. 205, 250 (1980).



"Habeas Corpus in Kansas: How is the Great Writ Used Today?" Martha J. Coffman, 64 J.K.B.A. No. 1, 26, 27, 28, 30, 31 (1995).

"Criminal Procedure Review: Survey of Recent Cases," 44 K.L.R. 895 (1996).

Survey of Recent Cases, 46 K.L.R. 922, 928, 929 (1998).

"Habeas Corpus in Kansas: The Great Writ Affords Postconviction Relief at K.S.A. 60-1507," Martha J. Coffman, 67 J.K.B.A. No. 1, 16 (1998).

"Writing to the Kansas appellate courts: a lesson in appellate jurisdiction," Autumn Fox, 69 J.K.B.A. No. 4, 32 (2000).

ATTORNEY GENERAL'S OPINIONS

County attorney and county counselor; duties; juvenile matters. 92-67.

Criminal appeals from district court; duties of county attorney; supplemental payment. 94-63.



CASE ANNOTATIONS

1. Void sentence can be set aside even though prisoner not entitled to release as result. Veronee v. State, 193 K. 681, 682, 683, 396 P.2d 360.

2. Federal law which has developed under 28 U.S.C., sec. 2255, should be given great weight in construing Kansas statute. State v. Richardson, 194 K. 471, 472, 473, 474, 476, 494, 399 P.2d 799.

3. An irregular or erroneous sentence is the same as a void one and within the court's power to correct. State v. Felton, 194 K. 501, 502, 503, 399 P.2d 817.

4. Movant has burden of proof; uncorroborated statements insufficient. Ramsey v. State, 194 K. 508, 509, 513, 399 P.2d 881.

5. Irregularities in preliminary hearing waived by guilty plea. State v. Blacksmith, 194 K. 643, 644, 400 P.2d 743.

6. Files and records show conclusively movant not entitled to relief, no formal plenary hearing necessary. State v. Burnett, 194 K. 645, 400 P.2d 971.

7. Indigent defendant not entitled to appointed counsel at preliminary hearing. Bergin v. State, 194 K. 656, 400 P.2d 978.

8. Movant's substantial rights not violated or prejudicially affected by lack of counsel at preliminary examination. State v. Ross, 194 K. 692, 693, 401 P.2d 915.

9. Answer by state is neither necessary nor required where movant is afforded complete hearing. Tipton v. State, 194 K. 705, 711, 402 P.2d 310.

10. Defendant has no constitutional right to appointed counsel at preliminary hearing. Tarr v. State, 194 K. 798, 402 P.2d 309.

11. Indigent not presumed to be unable to intelligently waive counsel. Powers v. State, 194 K. 820, 402 P.2d 328.

12. Petition for habeas corpus treated as application hereunder. Brimer v. State, 195 K. 107, 402 P.2d 789.

13. Court appointed counsel presumed to have performed his duties absent contrary showing. Huston v. State, 195 K. 140, 403 P.2d 122.

14. Movant not entitled to different counsel on appeal as matter of right. State v. Talbert, 195 K. 149, 150, 151, 402 P.2d 810.

15. Mentioned; letter to district court treated as a motion hereunder. Portis v. State, 195 K. 313, 315, 403 P.2d 959.

16. Proceeding hereunder is civil in nature and movant is plaintiff. Thompson v. State, 195 K. 318, 403 P.2d 1009.

17. Failure to exhaust remedies under this section prevents habeas corpus in federal court. Bratt v. Crouse, 346 F.2d 146.

18. Successive motion considered and denied. State v. Folk, 195 K. 349, 350, 351, 404 P.2d 961.

19. Action hereunder premature; an attempt to join appeal hereunder with direct criminal appeal. State v. Lewis, 195 K. 389, 395, 405 P.2d 796.

20. A judgment of conviction carries presumption of regularity and defendant has the burden to prove otherwise by a preponderance of the evidence. Goodwin v. State, 195 K. 414, 415, 420, 407 P.2d 528.

21. Court is not required to entertain successive motions. Goodwin v. State, 195 K. 414, 415, 420, 407 P.2d 528.

22. Motion to vacate and set aside prior judgment denied; no constitutional right to court appointed counsel for preliminary hearing. Chance v. State, 195 K. 430, 407 P.2d 236.

23. Motion attacking judgment and sentence considered. Miles v. State, 195 K. 516, 518, 407 P.2d 507.

24. Cited in action to set aside conviction and sentencing under 21-107a. Zumalt v. State, 195 K. 520, 407 P.2d 234.

25. Where files and records of sentencing court conclusively show that petitioner not entitled to relief, formal plenary hearing, appointment of counsel for petitioner and production of petitioner for hearing not required. Blacksmith v. State, 195 K. 523, 524, 525, 526, 407 P.2d 486.

26. Failure to provide counsel at preliminary hearing or inquire if mental coercion or promises were made not error. Walsh v. State, 195 K. 527, 407 P.2d 516.

27. Indigent accused has no constitutional right to court-appointed counsel at preliminary hearing. Cleveland v. State, 195 K. 544, 407 P.2d 488.

28. Motion hereunder overruled; evidentiary hearing in the petitioner's presence at discretion of court. Call v. State, 195 K. 688, 689, 693, 408 P.2d 668.

29. No hearing required when records conclusively show petitioner not entitled to relief. Sanders v. State, 195 K. 701, 703, 408 P.2d 587.

30. Collateral attack hereunder precluded by acquiescence in sentence and judgment by seeking probation. Sanders v. State, 195 K. 701, 704, 408 P.2d 587. This portion of opinion deleted and withdrawn. Sanders v. State, 196 K. 181, 408 P.2d 587.

31. Defendant has no right to court appointed counsel at preliminary hearing; adequacy of counsel considered; use of pretrial conference. Shores v. State, 195 K. 705, 706, 707, 408 P.2d 608.

32. Denial of motion to vacate judgment upheld. Chance v. State, 195 K. 711, 712, 714, 408 P.2d 677.

33. Various elements discussed; hearing denied as records indicate petitioner entitled to no relief hereunder. Fields v. State, 195 K. 718, 722, 408 P.2d 674.

34. Evidentiary hearing denied; whether petitioner knowingly and intentionally entered plea of guilty considered. Webb v. State, 195 K. 728, 731, 734, 408 P.2d 662.

35. Remedy may not be invoked when petitioner is serving another sentence in addition to one challenged. King v. State, 195 K. 736, 737, 738, 408 P.2d 599.

36. Various matters considered and motion denied. Groene v. State, 195 K. 740, 408 P.2d 580.

37. In proceedings hereunder, petitioner is presumed to have listed all grounds upon which he is relying; second or successive motions considered. Smith v. State, 195 K. 745, 746, 747, 408 P.2d 647.

38. Record examined and held not to be second or successive motion; federal statute considered in construing act. Perrin v. State, 196 K. 228, 231, 232, 233, 234, 410 P.2d 298.

39. Petitioner should be present where claim found to be substantial and evidentiary hearing granted to ascertain facts as to events in which he participated; right to notice prior to sentencing under habitual criminal act. Brown v. State, 196 K. 236, 239, 241, 242, 243, 409 P.2d 772.

40. Appeal in proceeding to vacate sentence hereunder cannot be joined with direct appeal from judgment and sentence. State v. Back, 196 K. 308, 312, 411 P.2d 601.

41. Motion no substitute for direct appeal; assertion of innocence may not be considered hereunder; remedy is commensurate with that previously available by habeas corpus; illegal arrest no grounds for vacation. Hanes v. State, 196 K. 404, 406, 407, 408, 411 P.2d 643.

42. Motion denied as second or successive. Hanes v. State, 196 K. 409, 410, 411 P.2d 646.

43. Motion denied; determination if claim substantial before granting full evidentiary hearing. McCall v. State, 196 K. 411, 412, 416, 411 P.2d 647.

44. Various issues raised in motion; full hearing with appellant present and represented by counsel not required. McFarland v. State, 196 K. 417, 418, 420, 411 P.2d 658.

45. Uncorroborated statement of movant insufficient to sustain burden of proof; motion overruled. Cooper v. State, 196 K. 421, 422, 427, 411 P.2d 652.

46. Various alleged trial errors considered; formal plenary hearing not required. Kelly v. State, 196 K. 428, 430, 431, 433, 411 P.2d 611.

47. No right to counsel at preliminary hearing; motion denied. Tate v. State, 196 K. 435, 436, 411 P.2d 661.

48. Various alleged trial errors considered; formal plenary hearing, appointment of counsel and production of petitioner for hearing not required. Smith v. State, 196 K. 438, 439, 440, 441, 444, 411 P.2d 663.

49. Various alleged trial errors considered; advice as to constitutional rights; assistance of counsel; motion denied. Case v. State, 196 K. 446, 447, 448, 411 P.2d 402.

50. Right to counsel at preliminary hearing; no objection made to evidence and not raised on motion for new trial, may not be raised hereunder; various alleged trial errors considered but motion denied. McCuan v. State, 196 K. 457, 458, 459, 460, 462, 463, 413 P.2d 69.

51. Appointment of counsel or representation at preliminary hearing; no plenary hearing required. Byrd v. State, 196 K. 466, 413 P.2d 61.

52. Remedy hereunder may not be invoked if prisoner would still be confined under the other sentences. Whiteaker v. State, 196 K. 583, 584, 585, 413 P.2d 122.

53. Motion hereunder denied; habitual criminal act (K.S.A. 21-107a) as administered not violative of due process and equal protection clauses of fourteenth amendment to U.S. Constitution. Gladen v. State, 196 K. 586, 413 P.2d 124.

54. When joining two different cases in motion hereunder permitted; evidentiary hearing not required; effective assistance of counsel at arraignment considered. Coats v. State, 196 K. 607, 609, 610, 413 P.2d 81.

55. Provisions of act provide for no inquiry into acts of board of probation and parole; petitioner properly charged and sentenced under "worthless check" act (K.S.A. 21-554). Foor v. State, 196 K. 618, 620, 413 P.2d 719.

56. Various alleged trial errors considered; motion denied. Fairbanks v. State, 196 K. 650, 651, 413 P.2d 985.

57. Appeal without counsel; treatment as affidavit for appointment of counsel under Rule No. 56. Porter v. State, 196 K. 732, 734, 414 P.2d 56.

58. Mental responsibility of accused may not be raised in proceeding hereunder. Kiser v. State, 196 K. 736, 737, 739, 413 P.2d 1002.

59. Judgment validity may be collaterally attacked on jurisdictional and constitutional grounds. State v. Minor, 197 K. 296, 300, 416 P.2d 724.

60. Denial of relief hereunder approved. Witt v. State, 197 K. 363, 366, 416 P.2d 717.

61. Provisions of this statute may not be invoked if petitioner if successful would still be confined. Lee v. State, 197 K. 371, 373, 416 P.2d 285.

62. Burden of proof is on movant and his uncorroborated testimony is insufficient. Miksell v. State, 197 K. 385, 388, 416 P.2d 780.

63. Assistance of counsel may be waived. Lloyd v. State, 197 K. 389, 390, 392, 416 P.2d 766.

64. Petitioner waives defense of former jeopardy by guilty plea. Cox v. State, 197 K. 395, 397, 416 P.2d 741.

65. Convictions had in a sister state may not be collaterally attacked. Chappell v. State, 197 K. 407, 416 P.2d 786.

66. Issue regarding voluntariness of guilty plea must be presented to state court. Daegele v. Crouse, 351 F.2d 306, 307.

67. Petitioner stated appeal being prosecuted; habeas corpus denied. Kelly v. Crouse, 352 F.2d 506.

68. Allegation in habeas corpus petition of denial of due process unsupported by record. Finan v. Crouse, 352 F.2d 507.

69. Detention lawful although sentence under 21-107a void; terms separable; habeas corpus denied. Browning v. Crouse, 356 F.2d 178, 179.

70. Judgment dismissing habeas corpus for failure to exhaust state remedies lacked specificity. Naillieux v. Crouse, 356 F.2d 499, 500.

71. Defendant entitled to seek federal habeas corpus where over year elapsed from time of filing hereunder and entry of order. Smith v. State of Kansas, 356 F.2d 654, 655, 656, 657.

72. Federal habeas corpus denied where appeal pending from denial of state remedy. Gordon v. Crouse, 357 F.2d 174.

73. Ample state remedies providing for post-conviction relief; federal habeas corpus denied. Blair v. Crouse, 360 F.2d 28, 29.

74. Court could not conclude prisoner's state remedies were adequate without facts concerning state appeal. Jones v. Crouse, 360 F.2d 157, 158.

75. No substantial issues raised which required petitioner's presence or appointment of counsel. Davis v. State, 197 K. 576, 577, 579, 419 P.2d 832.

76.A prisoner released on parole remains in "custody." Baier v. State, 197 K. 602, 603, 604, 606, 419 P.2d 865.

77. Court erred in determining in cursory proceeding that petitioner entitled to no relief. Rodgers v. State, 197 K. 622, 624, 625, 419 P.2d 828.

78. Prisoner cannot challenge sentence while confined under another sentence. Jackson v. State, 197 K. 627, 628, 629, 419 P.2d 937. Reversed due to amendment of supreme court rule; original appeal to be determined on merits. Jackson v. State, 202 K. 194, 195, 448 P.2d 18.

79. Judgment of conviction carries presumption of regularity; defendant has burden to establish violation of rights. Thompson v. State, 197 K. 630, 633, 634, 635, 419 P.2d 891.

80. Presence of petitioner at hearing not required under issues presented. Washington v. State, 197 K. 636, 637, 419 P.2d 639.

81. Correction of sentence; defendant must be present at time new sentence is pronounced. Roberts v. State, 197 K. 687, 421 P.2d 48.

82. Void sentence may be corrected; court in resentencing is limited to facts existing at time of original sentence. Bridges v. State, 197 K. 704, 421 P.2d 45.

83. Appellant failed to sustain burden of proving violation of rights at hearing. Williams v. State, 197 K. 708, 421 P.2d 194.

84. Defense of insanity not presented during trial cannot be considered; inquiry as to insanity rests in discretion of court. Van Dusen v. State, 197 K. 718, 719, 721, 722, 725, 726, 421 P.2d 197.

85. Invocation of habitual criminal act; motion denied; subsequent motion on grounds not presented not successive motion. Adair v. State, 198 K. 1, 2, 3, 422 P.2d 959.

86. Relief granted; waiver of right to counsel; no finding appointment not to advantage of accused; proceedings in court not imposing sentence. Chance v. State, 198 K. 16, 19, 20, 422 P.2d 868.

87. Various alleged irregularities considered and motion hereunder denied. Kenreck v. State, 198 K. 21, 22, 25, 422 P.2d 894.

88. Records indicate defendant not entitled to relief; not necessary to produce petitioner. Peterson v. State, 198 K. 26, 29, 422 P.2d 567.

89. Hearing not required if record indicates defendant not entitled to relief. Craig v. State, 198 K. 39, 422 P.2d 955.

90. Burden of proof; trial errors not reviewable; plenary hearing denied. Addington v. State, 198 K. 228, 229, 231, 234, 235, 238, 424 P.2d 871.

91. Petitioner not entitled to relief though sentence void due to confinement under another sentence. Davis v. State, 198 K. 271, 272, 273, 424 P.2d 471.

92. Motion may not be filed while appeal pending or may be perfected. State v. Washington, 198 K. 275, 280, 424 P.2d 478.

93. Notice to invoke Habitual Criminal Act; waiver; counsel at preliminary hearing. Brown v. State, 198 K. 345, 348, 424 P.2d 576.

94. Petitioner raised no questions of fact; hearing not required. Patterson v. State, 198 K. 507, 508, 426 P.2d 42.

95. Uncorroborated statement that counsel and court failed to advise of right of appeal; hearing not required. Ware v. State, 198 K. 523, 526, 426 P.2d 78.

96. Uncorroborated statement as to "effective assistance" of counsel insufficient to sustain burden of proof. Brown v. State, 198 K. 527, 530, 426 P.2d 49.

97. Proceeding hereunder not substitute for second appeal. Brown v. State, 198 K. 527, 528, 426 P.2d 49.

98. Defendant's uncorroborated statements insufficient to sustain burden of proof. Robinson v. State, 198 K. 543, 545, 426 P.2d 95.

99. Compensation of counsel appointed for indigent prisoner approved. Stahl v. Board of County Commissioners, 198 K. 623, 624, 625, 626, 627, 628, 426 P.2d 134.

100. Mental examination rests in discretion of court; evidentiary hearing not required. McQueeney v. State, 198 K. 642, 643, 644, 426 P.2d 114.

101. Findings of trial court supported by evidence. Perrin v. State, 198 K. 650, 426 P.2d 39.

102. Validity of judgment and sentence for escape; no evidentiary hearing required. Henderson v. State, 198 K. 655, 656, 426 P.2d 92.

103. Conviction under city ordinance and state statute; records show no plenary hearing required. Earwood v. State, 198 K. 659, 426 P.2d 151.

104. Notice of invocation of habitual criminal act; unnecessary to appoint counsel and produce petitioner for hearing. Robertson v. State, 198 K. 662, 426 P.2d 52.

105. Motion denied upon basis of hearing; petitioner advised as to rights. John v. State, 198 K. 685, 687, 426 P.2d 74.

106. Duty of federal court to determine if findings of fact by state court have factual basis. Tipton v. Crouse, 361 F.2d 817, 818.

107. Habeas corpus denied; failure to exhaust available state remedies. Carroll v. Crouse, 361 F.2d 903, 904.

108. Writ of habeas corpus denied; state remedies not exhausted. Davis v. Crouse, 363 F.2d 382, 383.

109. Motion to vacate judgment and sentence under habitual criminal act denied. Palmer v. State, 199 K. 73, 427 P.2d 492.

110. Hearing unnecessary; files and records indicate preliminary hearing waived and prisoner entitled to no relief. Alcorn v. State, 199 K. 112, 113, 427 P.2d 588.

111. At proceeding for increase in and resentencing of defendant it is mandatory that he be personally present. Aeby v. State, 199 K. 123, 127, 427 P.2d 453.

112. Petitioner failed to establish constitutional rights violated; representation by attorney of defendant's choice not licensed in state not ground for reversal. Blakesley v. State, 199 K. 128, 427 P.2d 497.

113. Section provides exclusive statutory remedy for prisoner in custody to make a collateral attack on a sentence. Smith v. State, 199 K. 132, 135, 427 P.2d 625.

114. Various alleged errors considered; petitioner failed to establish violation of rights. Wright v. State, 199 K. 136, 427 P.2d 611.

115. In absence of evidence other than petitioner's uncorroborated statement it is assumed counsel advised petitioner of rights. Allen v. State, 199 K. 147, 149, 427 P.2d 598.

116. Where petitioner failed to name witness or designate evidence to support allegations, summary denial of motion is proper; acceptance of plea of guilty considered. Wagner v. State, 199 K. 154, 427 P.2d 495.

117. Proceeding hereunder not substitute for second appeal; trial errors may be raised only if exceptional circumstances excuse failure to appeal. Minor v. State, 199 K. 189, 190, 429 P.2d 760.

118. Where no substantial questions of law or triable issues of fact presented, no requirement for evidentiary hearing, notice of hearing, presence of defendant or appointment of counsel; section not substitute for second appeal. Carter v. State, 199 K. 290, 291, 428 P.2d 758.

119. No error in trial court failing to appoint counsel, not holding evidentiary hearing or in finding petitioner represented by competent counsel. Smith v. State, 199 K. 293, 295, 296, 429 P.2d 103.

120. Trial court erred in failing to appoint attorney to assist petitioner in his appeal. Greer v. State, 199 K. 354, 429 P.2d 942.

121. Appointment of counsel and evidentiary hearing unnecessary as files and records show appellant not entitled to relief; waiver of notice of application of habitual criminal act and evidence of prior conviction considered. Burnett v. State, 199 K. 362, 429 P.2d 923.

122. No error found in trial court summarily overruling motion hereunder. Redd v. State, 199 K. 431, 432, 433, 429 P.2d 925.

123. Motion to vacate, set aside or correct sentence not available while appeal of conviction and sentence pending; prisoner serving valid sentence cannot challenge validity of another sentence. Thomas v. State, 199 K. 459, 461, 464, 465, 466, 430 P.2d 268.

124. Record examined and no error found; denial of second motion for relief upheld. Fairbanks v. State, 199 K. 501, 430 P.2d 293.

125. Uncorroborated testimony of movant hereunder insufficient to sustain burden of proof. Chambers v. State, 199 K. 483, 484, 485, 430 P.2d 241; Lieser v. State, 199 K. 503, 505, 430 P.2d 243.

126. Defendant's right to notice of intent to invoke habitual criminal act may be waived. Lieser v. State, 199 K. 503, 505, 506, 430 P.2d 243.

127. Contemporaneous objection rule applied; assistance of counsel and peremptory challenges considered. Mize v. State, 199 K. 666, 667, 433 P.2d 397.

128. Record examined; denial of motion to vacate judgment under 21-531 upheld. Hensley v. State, 199 K. 728, 730, 731, 433 P.2d 344.

129. Record examined; no error found in denying relief in proceeding hereunder. Cox v. State, 199 K. 797, 798, 799, 433 P.2d 470.

130. No error in denying relief hereunder; uncorroborated evidence of petitioner insufficient to sustain burden of proof. Metcalf v. State, 199 K. 800, 805, 433 P.2d 450.

131. Sentence cannot be challenged hereunder where, notwithstanding decision, confinement valid under another sentence. Peterson v. State, 200 K. 18, 19, 434 P.2d 542.

132. When judgment and sentence entered upon voluntary plea of guilty, no review of sufficiency of the evidence. Toland v. State, 200 K. 184, 434 P.2d 550.

133. Right of appeal not constitutionally guaranteed; no error in not appointing counsel where defendant indicated no desire to appeal. State v. McGee, 200 K. 188, 189, 434 P.2d 841.

134. Doctrine of abuse of remedy invoked. Cox v. State, 200 K. 198, 199, 200, 201, 434 P.2d 843.

135. Record of trial court denying relief examined; no error shown. Jolly v. State, 200 K. 202, 203, 434 P.2d 547.

136. Order denying relief in proceeding instituted hereunder upheld. Mann v. State, 200 K. 422, 423, 425, 436 P.2d 358.

137. Proceeding hereunder not ordinarily a substitute for a second appeal from conviction. King v. State, 200 K. 461, 462, 436 P.2d 855.

138. Presence of defendant required at hearing of evidence on motion for relief hereunder only if there is involved a substantial issue of fact concerning events in which defendant personally participated. King v. State, 200 K. 461, 463, 436 P.2d 855.

139. Order denying motion to vacate sentence upheld; appeal had "no merit." Perry v. State, 200 K. 690, 691, 693, 694, 438 P.2d 83.

140. No error in denying motion hereunder; evidence taken by trial court pursuant to 21-403 upon petitioner's plea of guilty held sufficient. Rollins v. State, 200 K. 695, 696, 697, 438 P.2d 99.

141. Conditions of probation amounted to restraint on petitioner's freedom sufficient to constitute being in "custody," entitling petitioner to maintain action hereunder; order denying motion for relief upheld. Miller v. State, 200 K. 700, 703, 704, 706, 438 P.2d 87.

142. Confinement in state security hospital for "safekeeping and treatment" does not constitute "in custody under sentence" as required herein; petitioner not entitled to institute proceedings hereunder. Johnson v. State, 200 K. 708, 709, 710, 711, 438 P.2d 96.

143. Writ of habeas corpus denied; no showing that remedy hereunder is inadequate. Carpenter v. Crouse, 279 F.Supp. 275, 280.

144. Writ of habeas corpus denied; state remedies not exhausted. Kinnell v. Crouse, 384 F.2d 811, 812, 813.

145. Uncorroborated statement as to incompetency of counsel insufficient to sustain burden of showing incompetency; trial court did not err in failing to grant evidentiary hearing. Wisely v. State, 201 K. 377, 378, 440 P.2d 632.

146. Trial court did not err in denying motion to vacate sentences; plea of guilty not coerced; statements of petitioner were uncorroborated. Stiles v. State, 201 K. 387, 440 P.2d 592.

147. Record examined; full evidentiary hearing; order denying relief proper. Rodgers v. State, 201 K. 766, 443 P.2d 252.

148. Motion to vacate sentence; record examined; no evidence justifying relief. Yoho v. State, 201 K. 775, 776, 442 P.2d 1012.

149. Conviction of 1st degree robbery; defendants absence; waiver of right; record reviewed; no error. State v. Chuning, 201 K. 784, 443 P.2d 248.

150. Conviction of murder; record reviewed; no error. Wolfe v. State, 201 K. 790, 792, 443 P.2d 260.

151. Guilt or innocence of convicted person not properly justiciable under this section. Wolfe v. State, 201 K. 790, 792, 443 P.2d 260.

152. Mere conclusionary contentions not sufficient basis for relief. Wolfe v. State, 201 K. 790, 792, 443 P.2d 260.

153. Evidentiary hearing not required in proceeding hereunder. Bundy v. State, 201 K. 793, 794, 443 P.2d 259.

154. Supreme Court Rule No. 121 (60-2701) adopted to supplement procedure hereunder; purpose; effect of noncompliance. White v. State, 201 K. 801, 803, 804, 805, 443 P.2d 182.

155. Conviction of felonious assault; no error in overruling motion to vacate sentence. Wheeler v. State, 202 K. 134, 446 P.2d 777.

156. Conviction of burglary and larceny; motion to vacate sentence; record examined; relief denied. Huncovsky v. State, 202 K. 138, 446 P.2d 772.

157. District court did not err in refusing evidentiary hearing and denying relief. Chritton v. State, 202 K. 140, 446 P.2d 398.

158. Trial court's findings at evidentiary hearing reviewed and no error disclosed. Angle v. State, 202 K. 142, 446 P.2d 832.

159. Formal defect in journal entry did not void sentence. Ray v. State, 202 K. 144, 145, 147, 446 P.2d 762.

160. No constitutional right to counsel at preliminary hearing. Ray v. State, 202 K. 144, 145, 147, 446 P.2d 762.

161. Where evidentiary hearing granted, movant entitled to plenary hearing held in his presence. Ray v. State, 202 K. 144, 145, 147, 446 P.2d 762.

162. No error in denial of evidentiary hearing; possibility of invoking 21-107a did not impair constitutional rights. Whaley v. State, 202 K. 175, 446 P.2d 397.

163. Appellant not deprived of speedy trial; requirement of 62-1431 met. Basker v. State, 202 K. 177, 446 P.2d 780.

164. Under supreme court rule No. 120 (60-2702), as amended in 1968, petitioner granted new hearing. Davis v. State, 202 K. 192, 193, 446 P.2d 830.

165. Considered in denying relief on writ of habeas corpus. Moore v. Crouse, 393 F.2d 489, 490.

166. Importance of proceeding under section considered; prisoner failing to file hereunder had not exhausted state remedies. Brown v. Crouse, 395 F.2d 755, 756; Omo v. Crouse, 395 F.2d 757.

167. Cited in reviewing procedure for handling petitions, by state prisoners, for federal writ of habeas corpus. Brown v. Crouse, 399 F.2d 311, 312.

168. Petitioner must pursue post-conviction remedies prior to federal habeas corpus though issues were considered on direct appeal; federal court should hold evidentiary hearing if state court declines. Eldridge v. Crouse, 400 F.2d 94, 95.

169. In exceptional circumstances and where constitutional rights are affected, review may be obtained under supreme court rule No. 121 (60-2702). Holt v. State, 202 K. 759, 763, 451 P.2d 221.

170. Motion to vacate judgment and sentence; record examined; full evidentiary hearing; no error. Wippel v. State, 203 K. 207, 210, 453 P.2d 43.

171. Proceeding for post-conviction relief must be filed in court imposing sentence. Williams v. State, 203 K. 246, 247, 248, 452 P.2d 856.

172. Voluntary statement taken after advising of rights not inadmissible solely because of lack of counsel. Morris v. State, 203 K. 249, 250, 452 P.2d 840.

173. Burden of proving bad faith on prosecutor rests on person alleging it. Scoggins v. State, 203 K. 480, 490, 454 P.2d 550.

174. Various alleged errors reviewed and conviction under 21-549 upheld. Bush v. State, 203 K. 494, 496, 499, 454 P.2d 429.

175. Record reviewed; no error in conviction for murder. Knight v. State, 203 K. 652, 653, 455 P.2d 578.

176. Question of whether plea of guilty was voluntary is question of fact; burden of proving involuntariness is upon movant. White v. State, 203 K. 687, 688, 690, 455 P.2d 562.

177. Uncorroborated statements not sufficient to show guilty pleas the result of coercion of counsel. Sharp v. State, 203 K. 937, 940, 941, 945, 457 P.2d 14.

178. Relief hereunder denied; findings of the district court at an evidentiary hearing fully supported by record. Johnson v. State, 203 K. 947, 949, 952, 953, 457 P.2d 181.

179. Relief hereunder denied; endorsement of additional names on information, even during trial, is discretionary; receipt of verdict by substitute judge, without objection by defendant, is not reversible error. Peterson v. State, 203 K. 959, 960, 961, 962, 457 P.2d 6.

180. Notice of appeal from denial of motion hereunder treated as request for appointment of counsel. State v. Clark, 204 K. 38, 41, 460 P.2d 586.

181. Appeal from evidentiary hearing held hereunder without merit; defendant's plea of guilty was knowingly, understandingly and voluntarily made; defendant had effective assistance of counsel. Mathues v. State, 204 K. 204, 209, 460 P.2d 545.

182. Points raised on appeal from denial of motion hereunder fully considered and decided in direct appeal from conviction. Eaton v. State, 204 K. 222, 460 P.2d 447.

183. Motion for relief hereunder properly denied; no evidence of hostile or invidious discrimination. Miller v. State, 204 K. 223, 224, 460 P.2d 501.

184. No error in denying evidentiary hearing on motion to vacate and set aside sentence. Griffin v. State, 204 K. 340, 343, 461 P.2d 814.

185. Case remanded and further proceedings directed; limited collateral proceeding conducted by trial court to determine voluntariness of confession violated appellant's constitutional rights. Barnes v. State, 204 K. 344, 347, 348, 360, 461 P.2d 782.

186. Failure to appeal conviction excused; exceptional circumstances found pursuant to Rule No. 121. Barnes v. State, 204 K. 344, 345, 346, 348, 350, 351, 352, 360, 461 P.2d 782.

187. No waiver of fundamental constitutional rights by appellant; state failed to show the intentional relinquishment or abandonment of a known right or privilege. Barnes v. State, 204 K. 344, 352, 357, 360, 461 P.2d 782.

188. Uncorroborated testimony insufficient to establish right to relief; collateral attack on judgment not a substitute for second appeal. Lee v. State, 204 K. 361, 362, 461 P.2d 743.

189. Petitioner's pleas of guilty were freely and voluntarily entered; no denial of effective assistance of counsel; relief hereunder denied. Davis v. State, 204 K. 372, 373, 461 P.2d 812.

190. Relief hereunder denied; when files and records show conclusively the movant is entitled to no relief it is not error to conclude the proceedings by summary hearing, in absence of movant and without appointing counsel to represent him. Daugherty v. State, 204 K. 604, 606, 464 P.2d 221.

191. The burden of establishing incompetency of an attorney or the ineffective assistance of counsel, to the extent necessary to overcome the presumption of regularity of a conviction, is upon the petitioner. Baker v. State, 204 K. 607, 608, 612, 613, 618, 464 P.2d 212.

192. Failure to determine if confession was freely and voluntarily made; case remanded. Baker v. State, 204 K. 607, 615, 464 P.2d 212.

193. Proceeding hereunder not a substitute for direct appeal involving mere trial errors. Baker v. State, 204 K. 607, 609, 610, 611, 464 P.2d 212.

194. Appeal from order denying relief hereunder without merit; judgment affirmed. Collins v. State, 204 K. 619, 620, 622, 464 P.2d 1018.

195. Relief denied; conviction of felony, not sentence imposed, controls application of 21-107a. Nelson v. State, 204 K. 623, 464 P.2d 7.

196. Relief denied; no error shown. Nall v. State, 204 K. 636, 465 P.2d 957.

197. Proceeding hereunder not substitute for direct appeal, but "exceptional circumstances" pursuant to Rule No. 121 permit review of alleged trial errors having constitutional basis. Davis v. State, 204 K. 816, 817, 819, 466 P.2d 311.

198. Denial of motion to set aside judgment and sentence upheld; no corroborating evidence to support contention of error in denying motion to change venue. Davis v. State, 204 K. 816, 817, 819, 466 P.2d 311.

199. No appeal from conviction taken; proceeding hereunder not substitute for direct appeal; no error in denying continuance of evidentiary hearing for purpose of obtaining unavailable transcript of trial. Jackson v. State, 204 K. 823, 824, 825, 826, 827, 828, 829, 465 P.2d 927.

200. No error in denying motion to vacate sentence; uncorroborated statements insufficient to sustain burden of proof; issue of double jeopardy not properly raised for first time in proceeding hereunder. Jackson v. State, 204 K. 823, 824, 825, 826, 827, 828, 829, 465 P.2d 927.

201. Juror may not impeach verdict in which he himself joined by testifying at a proceeding hereunder as to reasoning employed by jury in reaching its decision or the influences on mental processes of jury in reaching its verdict; proceeding not substitute for second appeal. Ingram v. State, 204 K. 836, 837, 838, 465 P.2d 925.

202. Proceeding hereunder which collaterally attacks judgment may not be used as substitute for second appeal. Jones v. State, 204 K. 839, 840, 466 P.2d 353.

203. Proceeding hereunder not substitute for direct appeal involving trial errors, but if errors affect constitutional rights and exceptional circumstances excuse failure to appeal, they may be raised in said proceeding. Jackson v. State, 204 K. 841, 842, 843, 846, 466 P.2d 305.

204. Cited in discussion of exhaustion of state remedies. Smith v. Crouse, 298 F.Supp. 1029, 1032, 1036 (1968).

205. Petitioner did not learn of denial by Kansas court of motion to vacate sentence in time to appeal; failure to appeal not a bar to federal habeas corpus relief. Oswald v. Crouse, 420 F.2d 373, 374.

206. Petitioner failed to exhaust state court remedies before seeking federal habeas corpus relief. Hudson v. Crouse, 420 F.2d 416, 417, 419.

207. In action brought hereunder, it is held an illegal arrest and detention do not, standing alone, invalidate a subsequent conviction. Kinnell v. State, 205 K. 445, 469 P.2d 348.

208. Proceeding hereunder does not provide a method of inquiry into priority of acts of Kansas board of probation and parole. Prescher v. State, 205 K. 636, 638, 639, 471 P.2d 349.

209. Exercise of discretion to invoke the habitual criminal act under supervision and control of county attorney. Bruffett v. State, 205 K. 863, 866, 472 P.2d 206.

210. In proceeding hereunder, the petitioner did not establish coercion in his plea of guilty. Cox v. State, 205 K. 867, 868, 870, 876, 473 P.2d 106.

211. No constitutional right to be furnished counsel at preliminary examination on felony charge. Stewart v. State, 206 K. 147, 476 P.2d 652.

212. Trial errors will be considered in proceedings hereunder only where constitutional rights have been impaired. Tuscano v. State, 206 K. 260, 263, 478 P.2d 213; Zimmer v. State, 206 K. 304, 316, 477 P.2d 791.

213. Plenary hearing and appointment of counsel unnecessary where motion fails to present a substantial question of law or a triable issue of fact. Robertson v. State, 206 K. 320, 322, 478 P.2d 196.

214. Section not substitute for direct appeal involving mere trial errors. Hannon v. State, 206 K. 518, 519, 520, 479 P.2d 852.

215. Where prosecution pending against inmate of penal institution, definition of speedy trial and procedure for relief governed by uniform mandatory disposition of detainers act (22-4301 et seq.). Thomas v. State, 206 K. 529, 530, 531, 479 P.2d 897.

216. Question of guilt or innocence not justiciable hereunder; no showing made of exceptional circumstances which would allow consideration of trial errors. Wood v. State, 206 K. 540, 541, 479 P.2d 889.

217. Motion to vacate, set aside or correct sentence cannot be maintained while appeal from conviction is pending. State v. Hamrick, 206 K. 543, 550, 479 P.2d 854.

218. In action brought hereunder, the trial court erred in vacating the increased sentence imposed on retrial and in resentencing the petitioner to the term originally imposed prior to the new trial. Young v. State, 207 K. 166, 167, 168, 483 P.2d 1020.

219. Petitioner's writ of habeas corpus treated as action hereunder for purpose of appeal. Paige v. Gaffney, 207 K. 170, 483 P.2d 494.

220. A third motion hereunder, alleging grounds different from those set forth in any previous motion, constitutes an abuse of the remedy and was properly dismissed by the sentencing court. Lee v. State, 207 K. 185, 186, 483 P.2d 1100.

221. A proceeding instituted hereunder which collaterally attacks a judgment of conviction should not be used as a substitute for a second appeal. Hacker v. State, 207 K. 195, 196, 197, 483 P.2d 484.

222. A proceeding hereunder cannot ordinarily be used as a substitute for a second appeal from a conviction. Neil v. State, 207 K. 212, 213, 483 P.2d 1117.

223. In proceeding hereunder there is substantial competent evidence to support finding oral confession was freely made. Baker v. State, 207 K. 214, 483 P.2d 1039.

224. Proceeding hereunder considered; court did not err in denying evidentiary hearing and denying relief. Greathouse v. State, 207 K. 216, 217, 483 P.2d 486.

225. In an appeal from order summarily dismissing a fourth motion hereunder, the trial court properly disposed of proceeding as an abuse of remedy. Lee v. State, 207 K. 220, 221, 483 P.2d 1100.

226. Federal courts will defer from ruling on merits of habeas corpus petitions by state prisoners until state courts have had reasonable opportunity to decide the claims hereunder. Prescher v. Crouse, 431 F.2d 209, 210, 211 (1970).

227. Exhaustion of state remedies is prerequisite to federal habeas corpus for state prisoner. Sanders v. Crouse, 313 F.Supp. 1031, 1032 (1970).

228. Failure to exhaust available state remedies; petition hereunder dismissed. Leigh v. Gaffney, 318 F.Supp. 85, 86 (1970).

229. Mentioned in connection with state's nunc pro tunc motion to correct journal entry to conform with sentence. State v. Lyon, 207 K. 378, 379, 382, 485 P.2d 332.

230. Sufficiency of information charging second degree burglary considered and upheld. Carithers v. State, 207 K. 607, 485 P.2d 1368.

231. Defendant's right to plead innocent and stand trial before jury not infringed. Weigel v. State, 207 K. 614, 485 P.2d 1347.

232. Petitioner's plea of guilty held to be understandingly, knowingly and voluntarily made. Voluntary plea of guilty waives irregularities which may have occurred in prior proceedings. Jones v. State, 207 K. 622, 623, 625, 485 P.2d 1349.

233. Post conviction remedy cannot be used as a second appeal to reexamine questions raised on direct appeal. Cipolla v. State, 207 K. 822, 823, 486 P.2d 1391.

234. Cited in an appeal raising issue that a commission was not appointed to determine sanity of defendant; conviction upheld. Taylor v. State, 208 K. 189, 490 P.2d 363.

235. Appeal based on double jeopardy where defendant convicted in city court and state court when crimes arose from single incident; conviction upheld. Cox v. State, 208 K. 190, 490 P.2d 381.

236. Where no substantial question of law or triable fact issue, relief properly denied. Preston v. State, 208 K. 648, 493 P.2d 187.

237. Court may appoint counsel even though no substantial question of law or triable fact are presented. Kowlec v. State, 208 K. 651, 493 P.2d 244.

238. Unless it fails to state a public offense, sufficiency of information may not be challenged in post-conviction proceeding. Weathers v. State, 208 K. 653, 493 P.2d 270.

239. Where two separate offenses grow out of same situation, trial on one does not bar prosecution on other, on grounds of double jeopardy. Coverly v. State, 208 K. 670, 493 P.2d 261.

240. Standards for validity of guilty plea discussed. Johnson v. State, 208 K. 862, 494 P.2d 1078.

241. In capital case, exclusion of jurors opposed to capital punishment not presumed to increase risk of conviction. Turner v. State, 208 K. 865, 866, 867, 494 P.2d 1130.

242. Where motion alleged facts requiring relief but not appearing in original record, petitioner entitled to evidentiary hearing. Floyd v. State, 208 K. 874, 875, 877, 495 P.2d 92.

243. Allegations of incompetency of counsel reviewed and gauged by totality of representation; denial of effective counsel not presumed. Bruffett v. State, 208 K. 942, 943, 945, 494 P.2d 1160.

244. Post conviction proceeding may not be used as second appeal. Yurk v. State, 208 K. 946, 947, 495 P.2d 87.

245. Federal application dismissed where state post-conviction remedies not exhausted. Leigh v. State of Kansas, 321 F.Supp. 195, 197.

246. Testimony of jurors not competent for purpose of impugning verdict. Ingram v. Crouse, 322 F.Supp. 1328, 1329.

247. Federal Civil Rights Act of 1871 does not authorize by-passing state post-conviction remedies. Davis v. State of Kansas, 327 F.Supp. 963, 966.

248. Petition for habeas corpus dismissed where state post-conviction remedies not exhausted. Davis v. State of Kansas, 327 F.Supp. 963, 966.

249. State prisoner cannot use the Federal Civil Rights Act to circumvent federal Habeas Corpus requirement that available state remedies must first be exhausted. Hamrick v. Morton, 436 F.2d 940.

250. Order denying relief affirmed; issue raised on direct appeal. Sagebiel v. State, 209 K. 209, 495 P.2d 530.

251. Under 21-2611 it does not matter whether burglary was punishable as a felony or as a misdemeanor. Sanders v. State, 209 K. 505, 496 P.2d 1394.

252. Post-conviction proceeding may not be used as a second appeal. Kirtdoll v. State, 209 K. 508, 509, 510, 496 P.2d 1396.

253. Successive motions hereunder on same grounds construed as abuse of remedy; remanded with direction to dismiss. Robinson v. State, 209 K. 667, 668, 498 P.2d 35.

254. Appeal hereunder; motion failed to present substantial questions of law or triable issues of fact; summary denial affirmed. Delano v. State, 209 K. 670, 672, 675, 498 P.2d 18.

255. Proceeding hereunder; defendant given timely notice of state's intention to invoke habitual criminal act. Wasson v. State, 210 K. 205, 206, 499 P.2d 1128.

256. Forgery complaint filed during petitioner's confinement in penitentiary; no apparent compliance with uniform mandatory disposition of detainers act. Hayes v. State, 210 K. 231, 499 P.2d 515.

257. Constitutional right to assistance of counsel not violated; guilty plea voluntarily entered; factual basis for plea. Widener v. State, 210 K. 234, 235, 240, 499 P.2d 1123.

258. Appeal from burglary conviction not perfected; out-of-time appeal opportunity refused; right to speedy trial not violated. Brizendine v. State, 210 K. 241, 242, 243, 244, 499 P.2d 525.

259. Petitioner hereunder made proper demand for speedy trial (62-2901 et seq.); conviction vacated, lack of jurisdiction. Pierson v. State, 210 K. 367, 368, 369, 370, 375, 502 P.2d 721.

260. Appeal of guilty plea conviction under 21-734 dismissed for lack of jurisdiction; proper remedy hereunder. State v. Mitchell, 210 K. 470, 471, 502 P.2d 850.

261. Question of whether trial court abused discretion in not allowing continuance to be raised on direct appeal. Johnson v. State, 210 K. 498, 502 P.2d 838.

262. Subsection (c) mentioned; sentencing court may deny successive motion for relief by same prisoner. Cantrell v. State, 210 K. 528, 502 P.2d 840.

263. Double jeopardy issue cannot be raised for first time in proceeding hereunder; adequate representation by counsel. Miller v. State, 210 K. 542, 502 P.2d 833.

264. Failure to advise of right to appeal; right not constitutionally granted or guaranteed; guilty plea voluntarily entered. Collins v. State, 210 K. 577, 578, 502 P.2d 851.

265. Trial counsel privately employed; appointed attorney perfected appeal; contention both counsel incompetent; no evidentiary basis; relief denied. Winter v. State, 210 K. 597, 598, 600, 601, 604, 502 P.2d 733.

266. Plea of guilty; motion to vacate judgment after release; alleged coercion and denial of due process; record reviewed; no error. McCarther v. State, 211 K. 152, 154, 505 P.2d 773.

267. Motion to vacate sentence; irregularities prior to guilty plea waived. Rhone v. State, 211 K. 206, 207, 505 P.2d 673.

268. Motion to vacate sentence enhanced under 21-107a; claim of no valid proof of prior felony; no error found. Brooks v. State, 211 K. 210, 505 P.2d 766.

269. Denial of effective assistance of counsel issue examined by trial court; order denying relief affirmed. Griffin v. State, 211 K. 514, 507 P.2d 363.

270. Motion to vacate sentence; constitutionality of alibi notice requirement considered on direct appeal not reconsidered hereunder. Jenkins v. State, 211 K. 593, 506 P.2d 1111.

271. Modification reducing sentence; hearing not required; defendant's presence or representation by counsel not required. Daegele v. State, 211 K. 612, 506 P.2d 1134.

272. Convictions on two of four counts set aside; arose from the same transaction and were duplicitous. Jarrell v. State, 212 K. 171, 510 P.2d 127.

273. Proceeding hereunder; no denial of due process, invasion of any constitutional right or double jeopardy found. Lynch v. State, 212 K. 177, 509 P.2d 1125.

274. Evidentiary hearing and appointment of counsel not required where record conclusively shows petitioner's pleas of guilty were voluntary. Ames v. State, 212 K. 409, 511 P.2d 219.

275. Defendant has no constitutional right to be placed in a pretrial lineup. Dunlap v. State, 212 K. 822, 512 P.2d 484.

276. Post-conviction remedy not a substitute for second appeal unless alleged errors affect constitutional rights and circumstances excuse failure to raise errors on direct appeal. Roy v. State, 213 K. 30, 31, 32, 33, 514 P.2d 832.

277. Mentioned in review of prior post-conviction action by defendant alleging constitutional errors in resentencing order under 21-107a. State v. Eaton, 213 K. 86, 87, 515 P.2d 807.

278. Appeal from denial of relief hereunder properly overruled; dismissal of direct appeal provides no basis for relief hereunder. Mayberry v. State, 213 K. 199, 200, 515 P.2d 819.

279. Post-conviction remedy cannot be used as second appeal to reexamine questions determined on direct appeal. Jones v. State, 213 K. 248, 515 P.2d 745.

280. Burden on accused to establish inadequacy of counsel; confinement in isolation insufficient of itself to sustain finding of coerced confession. Reid v. State, 213 K. 298, 299, 305, 306, 515 P.2d 1040.

281. Judgment and sentence imposed after voluntary guilty plea not subject to collateral attack hereunder on ground there was no factual basis for plea. State v. Dunham, 213 K. 469, 471, 476, 477, 517 P.2d 150.

282. Denial of motion without appointment of counsel or evidentiary hearing affirmed; guilty plea understandingly made; counsel effective. State v. Komarek, 213 K. 532, 533, 516 P.2d 912.

283. Evidentiary hearing on motion contesting voluntariness of guilty plea properly denied. Rice v. State, 213 K. 591, 592, 500 P.2d 400.

284. Cited; proceeding to revoke probation not reviewable by motion hereunder absent constitutional irregularities. Toman v. State, 213 K. 857, 859, 518 P.2d 502.

285. Motion hereunder; habitual criminal act (21-107a) not an unconstitutional delegation of judicial power. Baker v. State, 213 K. 874, 518 P.2d 537.

286. Motion hereunder; claims fully presented on appeal not reviewable by motion. Henderson v. State, 213 K. 890, 518 P.2d 392.

287. Petitioner deprived of effective assistance of counsel; abuse of discretion. Oswald v. State, 214 K. 162, 165, 519 P.2d 624.

288. Uniform mandatory dispositions of detainers act (22-4301 et seq.) inapplicable to petitioner when absent from institution. Taylor v. State, 214 K. 285, 519 P.2d 1398.

289. Conviction of escaping from boys' industrial school; prior felony conviction within meaning of habitual criminal act. LaVier v. State, 214 K. 287, 520 P.2d 1325.

290. Conclusory allegations insufficient to present justiciable issue hereunder. Potts v. State, 214 K. 369, 520 P.2d 1259.

291. Motion to vacate sentence and conviction; alleged errors reviewed and judgment affirmed. Underwood v. State, 214 K. 633, 522 P.2d 457.

292. Successive use of post conviction remedy justified where new constitutional issue involved. Cox v. State, 214 K. 652, 653, 654, 522 P.2d 173.

293. Federal sentence running consecutively with state sentence; credit on federal sentence; no entitlement to credit on state sentence. Cox v. State, 214 K. 652, 653, 654, 522 P.2d 173.

294. Constitutionality of habitual criminal act (21-107a) upheld. Kowalec v. State, 214 K. 779, 522 P.2d 173.

295. Voluntary plea to complaint charging violation of 21-608 and 21-609; no grounds to vacate sentence. Peterson v. State, 215 K. 253, 254, 524 P.2d 740.

296. Post conviction relief could not be used as substitute for appeal; supreme court rule no. 121 applied. Caldrone v. State, 215 K. 351, 524 P.2d 228.

297. Section not ordinarily used as substitute for appeal; exception; application of supreme court rule no. 121. Tillman v. State, 215 K. 365, 524 P.2d 772.

298. Denial of post-conviction relief; out of time appeal from original conviction authorized. Troy v. State, 215 K. 368, 524 P.2d 1127.

299. Conviction of second degree murder; review of adverse judgment for post-conviction relief; no denial of due process or equal protection. Martin v. State, 215 K. 387, 524 P.2d 220.

300. Filing of second successive motion constituted abuse of remedy under section; denial of relief. Yurk v. State, 215 K. 389, 524 P.2d 223.

301. Burglary conviction; affirmed on appeal; second motion; record examined; no error. Brizendine v. State, 215 K. 433, 434, 435, 436, 524 P.2d 718.

302. Inmate tried within one year after charges filed not denied speedy trial; no effective request under 22-4301 et seq. Townsend v. White, 215 K. 485, 486, 524 P.2d 758.

303. Prosecution for escape not double jeopardy; due process not denied. Collins v. State, 215 K. 489, 490, 524 P.2d 715.

304. Burden of proof on movant to establish incompetency of counsel; facts supported by evidence; sentencing proper. Burns v. State, 215 K. 497, 498, 499, 524 P.2d 737.

305. Second motion hereunder constituted abuse of remedy; dismissed. Walker v. State, 216 K. 1, 2, 3, 4, 530 P.2d 1235.

306. Motion hereunder; issues not presented in trial not considered on appeal. Churchill v. State, 216 K. 399, 532 P.2d 1070.

307. Motion hereunder; appellant cannot predicate error on actions taken by him in his own defense. Bloomer v. State, 216 K. 469, 533 P.2d 278.

308. Motion hereunder; rape is not a lesser included offense of aggravated kidnapping. Wisner v. State, 216 K. 523, 532 P.2d 1051.

309. Evidence insufficient to support contention of failure to abide by plea bargaining agreement. State v. Szopenske, 217 K. 536, 538 P.2d 722.

310. Allegations of not knowingly or intelligently making voluntary plea of guilty not supported by facts. Robinson v. State, 218 K. 1, 2, 4, 5, 542 P.2d 305.

311. Various alleged errors examined on appeal from order denying relief hereunder; guilty plea; judgment affirmed. Trotter v. State, 218 K. 266, 268, 543 P.2d 1023.

312. Conduct of defense counsel did not constitute inadequate counsel as matter of law; factor for consideration. Schoonover v. State, 218 K. 377, 378, 381, 543 P.2d 881.

313. Jury impanelled under 43-102; United States Supreme Court decision concerning essential components in selection not applied retroactively; relief denied. Roth v. State, 218 K. 413, 543 P.2d 931.

314. Analogically discussed; waiver hearing under 38-808 is quasi-criminal in nature; order appealable; appointment of counsel constitutionally required. In re Harris, 218 K. 625, 629, 544 P.2d 1403.

315. Allegations of improper certification as adult in juvenile court proceeding insufficient to sustain motion for relief. Decker v. State, 219 K. 416, 417, 548 P.2d 489.

316. Where allegation not conclusively refuted by record, evidentiary hearing required. Morrow v. State, 219 K. 442, 443, 444, 445, 447, 448, 548 P.2d 727.

317. Motion raised issue of fact as to petitioner's competency to plead guilty; evidentiary hearing ordered. Outland v. State, 219 K. 547, 548 P.2d 725.

318. Failure to grant full evidentiary hearing not error where no grounds for relief substantiated. Van Bebber v. State, 220 K. 3, 4, 5, 551 P.2d 878.

319. Denial of transcript at public expense not constitutional infringement. Van Bebber v. State, 220 K. 3, 4, 5, 551 P.2d 878.

320. Alleged errors in prosecution for second degree burglary rejected; summary denial of motion to vacate sentence. Lee v. State, 220 K. 221, 552 P.2d 626.

321. Alleged grounds for relief hereunder denied; conviction of marihuana sale. Cook v. State, 220 K. 223, 552 P.2d 985.

322. Proceeding hereunder may not be used as a substitute for a second appeal. Kirk v. State, 220 K. 278, 552 P.2d 633.

323. Court in accepting nolo contendere plea of first degree murder not required to advise as to parole eligibility; relief denied. Hicks v. State, 220 K. 279, 283, 552 P.2d 889.

324. Mere conclusionary contention without evidentiary basis not sufficient to require evidentiary hearing for relief hereunder. Hicks v. State, 220 K. 279, 283, 552 P.2d 889.

325. Denial of evidentiary hearing affirmed; legality of convictions in other states upheld. James v. State, 220 K. 284, 553 P.2d 345.

326. Proceedings hereunder cannot be used as a substitute for second appeal; S.Ct. Rule 121 (c) applied. Melton v. State, 220 K. 516, 517, 552 P.2d 969.

327. Referred to; no abuse of discretion in striking testimony of prosecution witness; lost statements. State v. Wilkins, 220 K. 735, 740, 556 P.2d 424.

328. Alleged errors in conviction of first degree murder reviewed; judgment denying motion affirmed. Green v. State, 221 K. 75, 558 P.2d 110.

329. Filing of second successive motion hereunder constituted abuse of remedy authorized by section and supreme court rule. Dunlap v. State, 221 K. 268, 269, 270, 559 P.2d 788.

330. Petition for relief involved appealable question; no trial errors affecting constitutional rights or exceptional circumstances excusing appeal; motion denied. Estes v. State, 221 K. 412, 414, 559 P.2d 392.

331. Burden of proof upon petitioner where conviction challenged on grounds of inadequate counsel. Oswald v. State, 221 K. 625, 626, 627, 628, 631, 632, 561 P.2d 838.

332. Section applied; new trial granted. Bey v. State, 1 K.A.2d 429, 566 P.2d 88.

333. Order entered on a motion filed pursuant to this section may be appealed as from a final judgment. Esters v. State, 1 K.A.2d 503, 504, 506, 571 P.2d 32.

334. Trial court did not err in refusing to hold evidentiary hearing based on alleged newly discovered evidence. Jackson v. State, 1 K.A.2d 744, 745, 746, 747, 573 P.2d 637.

335. Plea entered in judge's office while court in session, with court officials and defendant present and public not excluded entered "in open court." Morris v. State, 2 K.A.2d 34, 573 P.2d 1130.

336. Prosecution of defendant on felony charge by state contemporaneously with misdemeanor prosecution by city based on same conduct did not violate due process under facts. Cox v. State, 2 K.A.2d 121, 122, 575 P.2d 905.

337. Refusal to set aside convictions upheld; harmless error. Lassley v. State, 2 K.A.2d 158, 576 P.2d 1094.

338. Conclusionary contention that petitioner entitled to relief not sufficient to require evidentiary hearing for post-conviction relief. Sullivan v. State, 222 K. 222, 223, 564 P.2d 455.

339. Section applied; appeal from a judgment denying relief on a motion to vacate. White v. State, 222 K. 709, 712, 568 P.2d 112.

340. Trial judge erred in disqualifying another trial judge; order granting petitioner's motion hereunder reversed. Carpenter v. State, 223 K. 523, 524, 525, 527, 575 P.2d 26.

341. Defendant not entitled under 21-4614 to credit for time spent in jail on another unrelated charge. Campbell v. State, 223 K. 528, 575 P.2d 524.

342. Section had no application where petitioner was not attacking sentence in court in which sentence imposed. Beard v. Maynard, 223 K. 631, 634, 576 P.2d 611.

343. Petition to vacate sentence on conviction of second degree murder denied; dismissal of action on direct appeal by trial court upheld. Weser v. State, 224 K. 272, 273, 274, 579 P.2d 1214.

344. Right to assistance of counsel not denied by counsel suspended for failure to pay registration fee. Johnson v. State, 225 K. 458, 461, 465, 590 P.2d 1082.

345. Denial of motion hereunder affirmed; trial court's refusal to allow guilty plea withdrawal held proper. Burden v. State, 225 K. 549, 592 P.2d 451.

346. Second proceeding under section held properly dismissed; abuse of remedy. Schoonover v. State, 2 K.A.2d 481, 482, 484, 489, 490, 582 P.2d 292.

347. Petition alleging violation of constitutional rights by inmate of penitentiary dismissed; no abuse of discretion. Griffin v. Raines, 2 K.A.2d 596, 585 P.2d 620.

348. Cited; conviction for battery under 21-3413 reversed; inadequacy of waiver of counsel. State v. Daniels, 2 K.A.2d 603, 606, 586 P.2d 50.

349. Defendant who plea bargained could not change plea after sentence; motion to vacate hereunder without merit. Burden v. State, 2 K.A.2d 640, 641, 586 P.2d 65.

350. Case remanded for hearing on voluntariness of confession; appeal from conviction of aggravated assault. State v. Shuckahosee, 2 K.A.2d 717, 720, 587 P.2d 923.

351. Cited in action for libel by former counsel. Steere v. Cupp, 226 K. 566, 568, 602 P.2d 1267.

352. Where issue not raised at trial, remedy, if any, is under this section rather than on appeal. State v. Roberts, 226 K. 740, 745, 602 P.2d 1355.

353. Cited in holding presence of convicted defendant not required at hearing on post-verdict motion for new trial. State v. Bryant, 227 K. 385, 391, 607 P.2d 66.

354. Effect of failure to raise lack of preliminary hearing transcript and court's failure to advise of appeal right on direct appeal. Jones v. State, 3 K.A.2d 578, 579, 580, 581, 583, 601 P.2d 1135.

355. Cited as inapplicable; no appeal from denial of sentence modification motion filed more than 130 days after sentencing. State v. Henning, 3 K.A.2d 607, 608, 599 P.2d 318.

356. Mentioned in review of Kansas double jeopardy law; prosecution based on acts proved in former prosecution barred by 21-3108(2)(a). In re Berkowitz, 3 K.A.2d 726, 740, 602 P.2d 99.

357. Section provides relief only when person is in present custody under sentence. Johnson v. State, 4 K.A.2d 573, 574, 575, 608 P.2d 1044.

358. Under facts of case nolo contendere plea same as guilty plea; no jurisdictional grounds found to attack the proceedings. Lill v. State, 4 K.A.2d 40, 602 P.2d 129.

359. No statutory or constitutional requirement that counsel be appointed at each and every post-trial motion seeking new trial on grounds of newly discovered evidence. State v. Andrews, 228 K. 368, 373, 374, 375, 614 P.2d 447.

360. Where defendant knows and understands nature of charge, failure to furnish defendant with copy of indictment of information at arraignment does not vitiate plea. Poore v. State, 5 K.A.2d 210, 212, 613 P.2d 963.

361. Applied in holding denial of an evidentiary hearing not improper. Wright v. State, 5 K.A.2d 494, 495, 619 P.2d 155.

362. Denial of motion made hereunder improper; guilty plea to second degree murder not knowingly made. Clinkingbeard v. State, 6 K.A.2d 716, 718, 634 P.2d 159 (1981).

363. Defendant filed motion to modify sentence imposed under 21-4618 for conviction under 21-3301; 21-4618 applies only to article 34 crimes. Sutton v. State, 6 K.A.2d 831, 636 P.2d 187 (1981).

364. Post-conviction remedy hereunder must be exhausted prior to federal habeas corpus. Hernandez v. Atkins, 524 F.Supp. 707, 708 (1981).

365. Motion to take appeal out of time from conviction granted by district court; appeal dismissed for lack of jurisdiction. State v. Ortiz, 230 K. 733, 734, 735, 736, 640 P.2d 1255 (1982).

366. Rules applicable to constitutional guarantees in actions hereunder not applicable to appeals from dismissal of habitual violator of traffic laws action. State v. Boos, 232 K. 864, 872, 659 P.2d 224 (1983).

367. Cited; burglary held to be inherently dangerous to human life and supports felony murder rule. Smith v. State, 8 K.A.2d 684, 688, 666 P.2d 730 (1983).

368. Section provides alternative remedy to direct appeal from sentence; if direct appeal taken identical issue may not be raised hereunder. State v. Green, 233 K. 1007, 1011, 666 P.2d 716 (1983).

369. Trial court must have opportunity to rule on question of ineffective counsel before presented on appeal. State v. Chamberlain, 234 K. 422, 425, 672 P.2d 604 (1983).

370. Where motions not susceptible of resolution by motion for new trial, matter considered hereunder. State v. Logan, 9 K.A.2d 353, 354, 678 P.2d 181 (1984).

371. Relief denied; PIK Crim. 54.01 does not impermissibly shift burden of proof from state to accused. Kirtdoll v. State, 9 K.A.2d 711, 687 P.2d 35 (1984).

372. Defendant must be present in court for resentencing. State v. Turbeville, 235 K. 993, 1002, 686 P.2d 138 (1984).

373. Time for filing motion to modify sentence under 21-4603(3) not extended by collateral proceeding hereunder. State v. Timmerman, 236 K. 414, 416, 691 P.2d 33 (1984).

374. Yardstick to be used in measuring effective assistance of counsel stated; new two-pronged standard adopted in addition to present guidelines. Chamberlain v. State, 236 K. 650, 651, 656, 694 P.2d 468 (1985).

375. Failure to forthwith transcribe recorded oral testimony supporting search warrant (22-2502(a)) technical irregularity only (22-2511); failure to challenge not deficient representation. Hearron v. State, 10 K.A.2d 229, 230, 234, 696 P.2d 418 (1985).

376. Motion for transcripts did not comply with requirements for habeas corpus motion. State v. McKinney, 10 K.A.2d 459, 701 P.2d 701 (1985).

377. Hearing denied where facts previously determined in post-conviction hearing from which no appeal taken. Palmer v. State, 10 K.A.2d 656, 657, 707 P.2d 1091 (1985).

378. Generally held if constitutional rights are at issue, habeas corpus is available even though no direct appeal taken. In re Habeas Corpus Application of Gilchrist, 238 K. 202, 205, 708 P.2d 977 (1985).

379. Cited; intent of sentencing judge when one of multiple sentences vacated; propriety of judge's ex parte communication with penitentiary discussed. Niblock v. State, 11 K.A.2d 30, 711 P.2d 771 (1985).

380. Sentencing court's specifying amount of restitution owed for parole or probation purposes (22-3717) examined. Tucker v. State, 11 K.A.2d 51, 54, 711 P.2d 1343 (1986).

381. Cited; remand procedure on ineffective counsel question permissible as alternative hereto when new counsel enters after appeal filed. State v. Van Cleave, 239 K. 117, 119, 120, 121, 716 P.2d 580 (1986).

382. Probation may be summarily revoked when based on misrepresentations made at sentencing; new sentence cannot be increased. Andrews v. State, 11 K.A.2d 322, 323, 325, 720 P.2d 227 (1986).

383. Failure to advise about expungement rights (21-4619) and appeal rights (38-1681(a)(1)(A)) when defendant no longer "juvenile offender" (38-1602 (b)(3)) examined. Reubke v. State, 11 K.A.2d 353, 720 P.2d 1141 (1986).

384. Court of appeals lacks jurisdiction of habeas corpus issue also on direct appeal to supreme court. In re Habeas Corpus Application of Maas, 11 K.A.2d 597, 598, 599, 730 P.2d 368 (1986).

385. Noted; requirement of written evidence in record regarding right to counsel (22-3426) examined. State v. Turner, 239 K. 360, 364, 721 P.2d 255 (1986).

386. Differences with 22-3504 examined; sole purpose of 22-3504(2) is to minimize difficulties encountered in a 60-1507 action. State v. Thomas, 239 K. 457, 459, 460, 720 P.2d 1059 (1986).

387. Cited; any defendant, whether convicted by plea or trial, may challenge sentence on appeal (22-3602); (State v. Haines, 238 K. 478, 712 P.2d 1211 (1986) overruled). State v. Harrold, 239 K. 645, 646, 649, 722 P.2d 563 (1986).

388. Where court permits extensive additional discovery and hearings after plea and before sentencing, appeal considered proceeding hereunder. State v. Alsup, 239 K. 673, 674, 722 P.2d 1100 (1986).

389. Cited; statutory guidelines for acceptance of guilty plea (22-3210) examined. Noble v. State 240 K. 162, 163, 727 P.2d 473 (1986).

390. Cited; court's dismissal of charge on own motion after state's case, then reinstatement with further proceedings as double jeopardy examined. Lowe v. State, 242 K. 64, 744 P.2d 856 (1987).

391. Cited; effective assistance of appellate counsel, issues not raised on appeal, discretion in sentencing examined. Baker v. State, 243 K. 1, 4, 755 P.2d 493 (1988).

392. Cited; jurisdiction to convict of aggravated sexual battery (21-3518) on information charging rape (21-3502) examined. Patterson v. State, 12 K.A.2d 731, 754 P.2d 1207 (1988).

393. Cited; legality of preliminary inquiry on motion regarding new evidence before requiring witnesses to appear examined. State v. Dunn, 243 K. 414, 436, 758 P.2d 718 (1988).

394. Cited; procedures by which defendant may attack imprisonment conditions or constitutionality or legality of sentence examined. State ex rel. Stephan v. Clark, 243 K. 561, 569, 759 P.2d 119 (1988).

395. Absence of constitutional right to counsel when mounting collateral attack on conviction examined. Robinson v. State, 13 K.A.2d 244, 767 P.2d 851 (1989).

396. Time for filing motion to modify sentence (21-4603(3)) not extended by filing collateral proceeding. State v. Saft, 244 K. 517, 520, 769 P.2d 675 (1989).

397. Distinction between civil proceeding determining habitual violator status (8-286) and criminal conviction noted. State v. Whitehurst, 13 K.A.2d 411, 772 P.2d 1251 (1988).

398. Assessing filing fee cost permitted after adverse determination in 60-1507 motion filed under poverty affidavit. Fought v. State, 14 K.A.2d 17, 18 (1989).

399. Failure to allege essential elements of offense in information as voiding conviction thereof noted. Zapata v. State, 14 K.A.2d 94, 782 P.2d 1251 (1989).

400. Appeal from probation denial following guilty plea where statutory presumption of probation applies (21-4606a) examined. State v. VanReed, 245 K. 213, 216, 777 P.2d 794 (1989).

401. Untimely notice of appeal as constituting ineffective assistance of counsel and granting right to appeal determined. State v. Smith, 245 K. 381, 383, 781 P.2d 666 (1989).

402. Nolo contendere plea to underlying charge as constituting waiver of statute of limitations defense (21-3106) determined. Lowe v. State, 14 K.A.2d 119, 122, 783 P.2d 1313 (1990).

403. Conscientious counsel should not undertake appeal where, in exercise of reasonable professional judgment, no meritorious issues exist. State v. Requena, 14 K.A.2d 234, 235, 788 P.2d 287 (1990).

404. Defendant's right to counsel at hearing on motion to modify sentence (21-4603(3)) determined. State v. Pierce, 246 K. 183, 188, 787 P.2d 1189 (1990).

405. Criminal statutes of limitations as procedural noted. State v. Noah, 246 K. 291, 292, 788 P.2d 257 (1990).

406. Aggravated sexual battery (21-3518) as not lesser included crime of rape, (21-3502) examined; holdings to the contrary disapproved. State v. Gibson, 246 K. 298, 300, 787 P.2d 1176 (1990).

407. 60-1507 provides method to request new trial for newly discovered evidence after limitation in 22-3501 has run. State v. Bradley, 246 K. 316, 318, 787 P.2d 706 (1990).

408. Petition for certiorari with U.S. Supreme Court as not extending filing time for motion to modify sentence examined. State v. Miller, 246 K. 445, 448, 790 P.2d419 (1990).

409. Reversal of aggravated robbery (21-3427) conviction where threat of bodily harm or force not alleged determined. McLain v. State, 14 K.A.2d 329, 330, 789 P.2d 1201 (1990).

410. Attack upon conditions and treatment in confinement, when relief hereby inadequate examined. Shepherd v. Davies, 14 K.A.2d 333, 335, 789 P.2d 1190 (1990).

411. Relief available where petitioner establishes delay in holding parole revocation unreasonable and prejudicial. Parker v. State, 247 K. 214, 216, 795 P.2d 68 (1990).

412. Situations requiring appointment of counsel for postconviction proceedings in addition to statutory requirements examined. State v. Nunn, 247 K. 576, 583, 802 P.2d 547 (1990).

413. When counsel required for hearings on postconviction motions examined. State v. Carmichael, 247 K. 619, 623, 801 P.2d 1315 (1990).

414. Fact that petitioner's codefendants not as severely punished did not show constitutional error; sentence within statutory limits. Edwards v. State of Kan., 751 F.Supp. 197, 199 (1990).

415. New trial motion (22-3501) and 60-1507 motion attacking sentence can proceed simultaneously. State v. Harris, 249 K. 410, 413, 819 P.2d 1169 (1991).

416. Petitioner's motion to withdraw guilty plea on grounds he was not informed of certain collateral consequences denied. Cox v. State, 16 K.A.2d 128, 819 P.2d 1241 (1991).

417. Rules governing abuse of discretion in trial court's refusal to grant a new trial under 22-3501 applicable to appellate review hereunder. Taylor v. State, 251 K. 272, 834 P.2d 1325 (1992).

418. Assistance of counsel examined regarding defendant's right to testify and guarantee against self-incrimination. Taylor v. State, 252 K. 98, 99, 843 P.2d 682 (1992).

419. Issues raised on appeal not moot where defendant paroled from Kansas sentence and returned to Wyoming on detainer. State v. Aleman, 16 K.A.2d 784, 785, 830 P.2d 64 (1992).

420. Failure to follow state procedures for postconviction relief barred inmate from presenting claim to state courts. Jamesion v. Roberts, 788 F.Supp. 507, 508, 509 (1992).

421. Jury instruction containing presumption one intends consequence of voluntary action was new rule not to be applied retroactively. Goodwin v. McQuen, 809 F.Supp. 853, 854 (1992).

422. Ex parte communication between judge and juror held to be harmless error under facts presented. Crease v. State, 252 K. 326, 333, 845 P.2d 27 (1993).

423. Ex parte communication between judge and juror violated defendant's right of presence at all critical stages of trial. State v. Bowser, 252 K. 582, 586, 588, 847 P.2d 1231 (1993).

424. Defendant not deprived of effective counsel when defendant has no constitutional right to counsel to pursue a discretionary appeal. Foy v. State, 17 K.A.2d 775, 776, 844 P.2d 744 (1993).

425. Terms sentencing court and trial court refer to the district court and not to a specific judge. Morrow v. State, 18 K.A.2d 236, 243, 849 P.2d 1004 (1993).

426. Trial court lacked jurisdiction to convict father of rape of 15 year-old daughter where father also convicted of aggravated kidnapping. Carmichael v. State, 18 K.A.2d 435, 438, 856 P.2d 934 (1993).

427. Cited in disciplinary proceeding regarding ineffective assistance by attorney who represented three Korean nationals in kidnapping case. In re Docking, 254 K. 921, 922, 869 P.2d 237 (1994).

428. Whether Supreme Court Rule 183(c)(3) applies only to trial errors affecting constitutional rights examined. Carmichael v. State, 255 K. 10, 11, 14, 872 P.2d 240 (1994).

429. Whether defendant's guilty plea waived challenge to failure of state to charge specific over general offense examined. Labona v. State, 255 K. 66, 67, 69, 872 P.2d 271 (1994).

430. Whether prosecutor's breach of immunity agreement prejudiced defendant's substantial rights requiring resentencing examined. Cabral v. State, 19 K.A.2d 456, 457, 459, 464, 871 P.2d 1285 (1994).

431. Review of procedures governing hearings under section as guidance for hearings on 22-3210 motions. State v. Jackson, 255 K. 455, 458, 461, 463, 874 P.2d 1138 (1994).

432. When appellate courts have jurisdiction to hear appeal of denial of motion to withdraw guilty plea discussed. State v. McDaniel, 255 K. 756, 759, 877 P.2d 961 (1994).

433. Defendant precluded from appealing guilty plea may use section as remedy to collaterally attack. State v. Flowers, 19 K.A.2d 563, 565, 567, 873 P.2d 226 (1994).

434. Whether petitioner defendant may ask in county of confinement to convert sentence examined. Safarik v. Bruce, 20 K.A.2d 61, 66, 883 P.2d 1211 (1994).

435. Whether court erred by considering defendant's prior criminal activity which did not result in conviction in sentencing examined. State v. O'Neal, 256 K. 909, 910, 889 P.2d 128 (1995).

436. Whether mislabeled pro se motions for sentence conversion should be reviewed as petitions for habeas corpus examined. State v. Randall, 257 K. 482, 483, 893 P.2d 196 (1995).

437. Whether guilty plea based on ineffective assistance of counsel may be challenged under section examined. Garret v. State, 20 K.A.2d 513, 514, 889 P.2d 795 (1995).

438. Whether defendant who voluntarily entered into plea agreement was denied effective assistance of counsel examined. Baker v. State, 20 K.A.2d 807, 808, 815, 894 P.2d 221 (1995).

439. Whether inmate's mislabeled challenge to KDOC severity classification should be reviewed as habeas petition examined. State v. Mejia, 20 K.A.2d 890, 892, 894 P.2d 202 (1995).

440. Evidence insufficient to show trial counsel's performance ineffective on claim raised for first time on appeal. State v. Johnson, 258 K. 475, 489, 905 P.2d 94 (1995).

441. No error in trial court's denial of defendant's motion to file out of time appeal. State v. Thomas, 21 K.A.2d 504, 506, 900 P.2d 874 (1995).

442. Right of defendant to postconviction discovery of
DNA evidence is in discretion of trial court. Mebane v. State, 21 K.A.2d 533, 534, 902 P.2d 494 (1995).

443. Intervening change in law filed after defendant's appeal finalized cannot be retroactively applied. Alires v. State, 21 K.A.2d 676, 906 P.2d 172 (1995).

444. Defendant may challenge KDOC information used to retroactively convert offense to guidelines offense before sentencing court. Farris v. McKune, 259 K. 181, 188, 194, 911 P.2d 177 (1996).

445. An inmate's time on parole cannot be used to satisfy converted KSGA postrelease supervision period. Faulkner v. State, 22 K.A.2d 80, 81, 911 P.2d 203 (1996).

446. A motion filed under section may be voluntarily dismissed under 60-241(a)(1). Smith v. State, 22 K.A.2d 922, 923, 924 P.2d 662 (1996).

447. Failure of counsel to object to testimony of lawyer who defendant confessed to not prejudicial. Nickel v. Hannigan, 97 F.3d 403, 406 (1996).

448. No abuse of discretion in imposing same sentence as originally imposed; appellant not eligible for retroactive application of sentencing guidelines. State v. Goodwin, 261 K. 961, 933 P.2d 689 (1997).

449. Enhanced sentence under 21-4504 presumed regular and valid absent showing defendant did not have benefit of counsel at prior conviction. State v. Patterson, 262 K. 481, 483, 939 P.2d 909 (1997).

450. Action hereunder seeking conversion under 21-4701 et seq. not appropriate procedure to challenge decisions of parole board or sentencing commission. State v. Bookless, 23 K.A.2d 730, 935 P.2d 231 (1997).

451. Untimely motion to convert under 21-4724(d)(1) improperly dismissed; should have been construed as motion hereunder. State v. Harlin, 23 K.A.2d 800, 936 P.2d 292 (1997).

452. Untimely pro se motion for sentence conversion pursuant to 21-4724(d) should be considered as motion under this section. State v. Standifer, 24 K.A.2d 441, 442, 946 P.2d 637 (1997).

453. Trial court not required to hold evidentiary hearing if petition does not allege substantial issues of fact. Doolin v. State, 24 K.A.2d 500, 501, 947 P.2d 454 (1997).

454. Appellate standard of review for motion filed under section identical to other civil proceedings; evidentiary inferences discussed. Graham v. State, 263 K. 742, 743, 745, 952 P.2d 1266 (1998).

455. Trial court summary dismissal of constitutional challenge to KSGA (21-4701 et seq.) retroactivity provision and denial of appointment of counsel upheld. State v. Jones, 24 K.A.2d 669, 674, 951 P.2d 1302 (1998).

456. An action filed under section is rendered moot by appealing prisoner's death. Kirkland v. State, 25 K.A.2d 359, 360, 965 P.2d 227 (1998).

457. Summary denial of petitioner's second motion for similar relief upheld; exceptional circumstances not proven. Brooks v. State, 25 K.A.2d 466, 467, 966 P.2d 686 (1998).

458. Trial court cannot order habeas corpus petitioner to reimburse attorney fees of court-appointed counsel. Walker v. State, 26 K.A.2d 410, 411, 988 P.2d 283 (1999).

459. Trial error claim involving admission of evidence should be raised on direct appeal, not in habeas corpus motion. Sanders v. State, 26 K.A.2d 826, 827, 995 P.2d 397 (1999).

460. Trial court not required to conduct evidentiary hearing on habeas corpus motion where no factual basis for post conviction relief exists. Gourley v. McKune, 44 F.Supp.2d 1158, 1168 (1999).

461. Habeas petitioner is precluded from introducing evidence of communication breakdown with attorney without first moving for state post conviction relief. Ferguson v. McKune, 55 F.Supp.2d 1189, 1195 (1999).

462. Habeas corpus petition may not be used as a substitute for a second appeal. Zimmer v. McKune, 87 F.Supp.2d 1153, 1154 (2000).

 

LOUISIANA

LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:601 (2000)
601. Short title


This Chapter shall be known as the "
DNA Detection of Sexual and Violent Offenders Act".

LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:602 (2000)
602. Legislative findings and objectives


The Louisiana Legislature finds and declares that
DNA data banks are important tools in criminal investigations, in the exclusion of individuals who are the subject of criminal investigations or prosecutions, and in deterring and detecting recidivist acts. More than forty states have enacted laws requiring persons arrested for or convicted of certain crimes, especially sex offenses, to provide genetic samples for DNA profiling. Moreover, it is the policy of this state to assist federal, state, and local criminal justice and law enforcement agencies in the identification and detection of individuals in criminal investigations and in the identification of missing persons, to assist in the recovery or identification of human remains from disasters, and to assist with other humanitarian identification purposes. It is therefore in the best interest of the state to establish a DNA data base and a DNA data bank containing DNA samples submitted by individuals arrested, convicted, or presently incarcerated for felony sex offenses and other specified offenses.



LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:603 (2000)
603. Definitions


For purposes of this Chapter, the following terms shall have the following meanings:

(1) "CODIS" means Combined
DNA Index System, the Federal Bureau of Investigation's national DNA identification index system that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories.

(2) "Criminal justice agency" means any criminal justice agency as defined in R.S. 15:576(3).

(3) "Deputy secretary" means the deputy secretary of the Department of Public Safety and Corrections, public safety services, or the commander of the Louisiana State Police.

(4) "
DNA" means deoxyribonucleic acid, which is located in cells and provides an individual's personal genetic blueprint and which encodes genetic information that is the basis of human heredity and forensic identification.

(5) "
DNA record" means DNA identification information stored in the state DNA data base or the Combined DNA Index System for the purpose of generating investigative leads or supporting statistical interpretation of DNA test results. The DNA record is the result obtained from the DNA typing tests. The DNA record is comprised of the characteristics of a DNA sample which is of value in establishing the identity of individuals.

(6) "
DNA sample" means a blood, tissue, or bodily fluid sample provided by any person with respect to offenses covered by this Chapter or submitted to the state police criminalistics laboratory pursuant to this Chapter for analysis or storage, or both.

(7) "FBI" means the Federal Bureau of Investigation.

(8) "Felony sex offense" means a felony offense or an attempt to commit a felony offense in violation of R.S. 14:42 through 43.5 or R.S. 14:80 through 81.2.

(9) "Fund" means the
DNA Detection Fund established in this Chapter.

(10) "Other specified offense" means a commission of the following:

(a) A violation of R.S. 14:30 through 32.7.

(b) A violation of R.S. 14:34 through 38.2.

(c) A violation of R.S. 14:40.1 through 40.2.

(d) A violation of R.S. 14:44 through 45.

(11) "State police" means the office of state police or the state police criminalistics laboratory.

LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:604 (2000)
604. Powers and duties of state police


In addition to any other powers and duties conferred in this Chapter, the state police shall:

(1) Be responsible for the policy management and administration of the state
DNA identification record system to support law enforcement agencies and other criminal justice agencies.

(2) Promulgate rules and regulations to carry out the provisions of this Chapter.

(3) Provide for liaison with the FBI and other criminal justice agencies in regard to the state's participation in CODIS or in any
DNA data base designated by the state police.



LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:605 (2000)
605. State
DNA data base


There is hereby established the state
DNA data base. It shall be administered by the state police and provide DNA records to the FBI for storage and maintenance by CODIS. The state DNA data base shall have the capability provided by computer software and procedures administered by the state police to store and maintain DNA records related to:

(1) Forensic casework.

(2) Offenders required to provide a
DNA sample under this Chapter.

(3) Anonymous
DNA records used for research or quality control.

LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:606 (2000)
606. State
DNA data bank


There is hereby established the state
DNA data bank. It shall serve as the repository of DNA samples collected under this Chapter.



LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:606 (2000)
606. State
DNA data bank


There is hereby established the state
DNA data bank. It shall serve as the repository of DNA samples collected under this Chapter.



LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:607 (2000)
607. State police recommendation of additional offenses


The state police may recommend to the legislature that it enact legislation for the inclusion of additional offenses for which
DNA samples shall be taken and otherwise subjected to the provisions of this Chapter. In determining whether to recommend additional offenses, the state police shall consider those offenses for which DNA testing will have a substantial impact on the detection and identification of sex offenders and violent offenders.


LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:607 (2000)
607. State police recommendation of additional offenses


The state police may recommend to the legislature that it enact legislation for the inclusion of additional offenses for which
DNA samples shall be taken and otherwise subjected to the provisions of this Chapter. In determining whether to recommend additional offenses, the state police shall consider those offenses for which DNA testing will have a substantial impact on the detection and identification of sex offenders and violent offenders.


LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:608 (2000)
608. Procedural compatibility with FBI


The
DNA identification system as established by the state police shall be compatible with the procedures specified by the FBI, including use of comparable test procedures, laboratory equipment, supplies, and computer software.



LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:609 (2000)
609. Drawing or taking of
DNA samples


A. A person who is arrested for a felony sex offense or other specified offense on or after September 1, 1999, shall have a
DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.

B. Any person who is convicted or enters into a plea agreement resulting in a conviction on or after September 1, 1999, for a felony sex offense or other specified offense committed prior to that date shall have a
DNA sample drawn as follows:

(1) A person who is sentenced to a term of confinement for an offense covered by this Chapter shall have a
DNA sample drawn upon intake to a prison, jail, or any other detention facility or institution. If the person is already confined at the time of sentencing, the person shall have a DNA sample drawn immediately after the sentencing.

(2) A person who is convicted or enters into a plea agreement resulting in a conviction for an offense covered by this Chapter shall have a
DNA sample drawn as a condition of any sentence that will not involve an intake into a prison, jail, or any other detention facility or institution.

(3) Under no circumstances shall a person who is convicted or enters into a plea agreement resulting in a conviction for an offense covered by this Chapter be released in any manner after such disposition unless and until a
DNA sample has been withdrawn.

C. A person who has been convicted or enters into a plea agreement resulting in a conviction for a felony sex offense or other specified offense before September 1, 1999, and who is still serving a term of confinement in connection therewith on that date shall not be released in any manner prior to the expiration of his maximum term of confinement unless and until a
DNA sample has been withdrawn.

D. All
DNA samples taken pursuant to this Chapter shall be taken in accordance with regulations promulgated by the state police.

E. As used in this Section, the term "released" means any release, parole, furlough, work release, prerelease, or release in any other manner from a prison, jail, juvenile detention facility, or any other place of confinement.


LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:610 (2000)
610. Procedures for withdrawal, collection, and transmission of
DNA samples


A. Each
DNA sample required to be drawn under this Chapter from persons who are arrested, incarcerated, or confined shall be drawn at the place of booking, incarceration, or confinement. DNA samples from persons who are not ordered or sentenced to a term of confinement shall be drawn or taken at a prison, jail unit, juvenile facility, or other facility to be specified by the court. Only those individuals qualified to draw or take DNA samples in a medically approved manner shall draw or take a DNA sample to be submitted for DNA analysis. The DNA sample and a set of fingerprints taken upon booking shall be delivered to the state police in accordance with state police rules and regulations.

B. A person authorized to draw or take
DNA samples under this Chapter shall not be criminally liable for withdrawing a DNA sample and transmitting test results pursuant to this Chapter if he performed these activities in good faith and shall not be civilly liable for such activities when he acted in a reasonable manner according to generally accepted medical and other professional practices.



LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:611 (2000)
611. Procedures for conduct, disposition, and use of
DNA analysis


A. The state police shall prescribe procedures to be used in the collection, submission, identification, analysis, storage, and disposition of
DNA samples and typing results of DNA samples submitted pursuant to this Chapter. The DNA sample typing results shall be stored in the state DNA data base and records of testing shall be retained on file with the state police.

B. The state police may contract with third parties to effectuate the purposes of this Chapter.

C. Except as otherwise provided in R.S. 15:612(C), the tests to be performed on each
DNA sample shall be used only for law enforcement identification purposes or to assist in the recovery or identification of human remains from disasters or for other humanitarian identification purposes, including identification of missing persons.

D. Any other party contracting to carry out the functions of this Chapter shall be subject to the same restrictions and requirements of this Chapter, insofar as applicable, as apply to the state police, and subject to any additional restrictions imposed by the state police.



LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:612 (2000)
612.
DNA data base exchange


A. The state police shall receive, store, and perform analysis on
DNA samples or contract for DNA typing analysis with a qualified DNA laboratory that meets the guidelines as established by the state police, and shall classify and file the DNA record of identification characteristic profiles of DNA samples submitted under this Chapter and make such information available as provided in this Section. The state police may enter a contract for the storage of DNA typing analysis and for DNA typing analysis with a qualified DNA laboratory that meets guidelines as established by the state police. The results of the DNA profile of individuals in the state DNA data base shall be made available:

(1) To criminal justice agencies or approved crime laboratories which serve these agencies.

(2) Upon written or electronic request and in furtherance of an official investigation of a criminal offense or offender or suspected offender.

B. The state police shall adopt guidelines governing the methods of obtaining information from the state
DNA data base and procedures for verification of the identity and authority of the requestor.

C. The state police may create a separate population data base comprised of
DNA samples obtained under this Chapter after all personal identification is removed. The state police may share or disseminate the population data base with other criminal justice agencies or crime laboratories that serve to assist the state police with statistical data bases. The population data base may be made available to and searched by other agencies participating in the CODIS system.

LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:613 (2000)
613. Cancellation of authority to access or exchange
DNA records


The state police, for good cause shown, may revoke or suspend the right of a forensic
DNA laboratory within this state to access or exchange DNA identification records with criminal justice agencies.


LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:614 (2000)
614. Removal of records


A. A person whose
DNA record or profile has been included in the data base or data bank pursuant to this Chapter may request that his record or profile be removed on the following grounds:

(1) The arrest on which the authority for including his
DNA record or profile was based does not result in a conviction or plea agreement resulting in a conviction.

(2) The conviction on which the authority for including his
DNA record or profile was based has been reversed and the case dismissed.

B. The state police shall remove all records and identifiable information in the data base or data bank pertaining to the person and destroy all samples from the person upon receipt of a written request for the removal of the record and a certified court order of expungement properly obtained pursuant to the provisions of R.S. 44:9.



LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:615 (2000)
615. Mandatory cost


Unless the defendant shows that undue hardship would result, a mandatory cost of two hundred fifty dollars, which shall be in addition to any other costs imposed pursuant to law, shall automatically be imposed on any person convicted of a felony sex offense or other specified offense, and all proceeds derived from this Section shall be transmitted to the fund.



LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:616 (2000)
616. Confidentiality of records


Unless otherwise provided, all
DNA profiles and samples submitted to the state police pursuant to this Chapter shall be confidential.

LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:617 (2000)
617. Disclosure prohibited


A. Any person, by virtue of employment or official position, or any person contracting to carry out any functions under this Chapter, including any officer, employee, or agent of such contractor, who has possession of or access to individually identifiable
DNA information contained in the state DNA data base or in the state DNA data bank shall not disclose it in any manner to any person or agency not authorized to receive it knowing that such person or agency is not authorized to receive it.

B. No person shall obtain individually identifiable
DNA information from the state DNA data base or the state DNA data bank without authorization to do so.



LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:618 (2000)
618. Criminal penalties


A. Any person who violates R.S. 15:617(A) shall be fined not more than five hundred dollars or imprisoned with or without hard labor for not more than six months, or both.

B. Any person who knowingly violates R.S. 15:617(B) shall be fined not more than five hundred dollars or imprisoned with or without hard labor for not more than six months, or both.

C. Any person who tampers or attempts to tamper with any sample of blood, tissue, or other bodily fluids or the collection container without lawful authority shall be fined not more than five hundred dollars or imprisoned with or without hard labor for not more than six months, or both.

LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:619 (2000)
619.
DNA Detection Fund


All monies collected as costs pursuant to R.S. 15:615 shall be deposited into the state treasury. After compliance with the requirements of Article VII, Section 9(B) of the Constitution of Louisiana relative to the Bond Security and Redemption Fund, and prior to monies being placed in the state general fund, an amount equal to that deposited as required in this Section shall be credited to a special fund hereby created in the state treasury to be known as the
DNA Detection Fund. The monies in this fund shall be appropriated by the legislature to the state police to assist in carrying out the provisions of this Chapter. All unexpended and unencumbered monies in this fund at the end of the fiscal year shall remain in such fund. The monies in this fund shall be invested by the state treasurer in the same manner as monies in the state general fund and interest earned on the investment of monies shall be credited to this fund, again, following compliance with the requirements of Article VII, Section 9(B) relative to the Bond Security and Redemption Fund.

LOUISANA

LOUISIANA REVISED STATUTES
TITLE 15. CRIMINAL PROCEDURE
CHAPTER 6-A.
DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS

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La. R.S. 15:620 (2000)
620. Authority of law enforcement officers


Nothing in this Chapter shall limit or abrogate any existing authority of law enforcement officers to take, maintain, store, and utilize
DNA samples for law enforcement purposes.


 

MAINE

TITLE 25. INTERNAL SECURITY AND PUBLIC SAFETY
PART 4. STATE POLICE
CHAPTER 194.
DNA DATA BASE AND DATA BANK ACT

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25 M.R.S. § 1571 (2000)
§ 1571. Short title


This chapter may be known and cited as the "
DNA Data Base and Data Bank Act."

TITLE 25. INTERNAL SECURITY AND PUBLIC SAFETY
PART 4. STATE POLICE
CHAPTER 194.
DNA DATA BASE AND DATA BANK ACT

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25 M.R.S. § 1572 (2000)
§ 1572. Definitions


As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.

1. CODIS. "CODIS" means the Federal Bureau of Investigation's national
DNA identification index system that allows for storage and exchange of DNA records submitted by state and local forensic DNA laboratories and is derived from the Combined DNA Index System.

2. CRIME LAB. " Crime lab " means the Maine State Police Crime Laboratory located in Augusta.

3.
DNA. " DNA " means deoxyribonucleic acid.

4.
DNA ANALYSIS. " DNA analysis " means DNA typing tests that derive identification information specific to a person from that person's DNA.

5.
DNA RECORD. " DNA record " means DNA identification information obtained from DNA analysis and stored in the state DNA data base or CODIS.

6.
DNA SAMPLE. " DNA sample " means a blood sample provided by a person convicted of one of the offenses listed in this chapter or submitted to the crime lab for analysis pursuant to a criminal investigation.

7. FBI. " FBI " means the Federal Bureau of Investigation of the United States Department of Justice.

8. STATE
DNA DATA BASE. " State DNA data base " means the DNA identification record system administered by the Chief of the State Police.

9. STATE
DNA DATA BANK. " State DNA data bank " means the repository of DNA samples maintained by the Chief of the State Police at the crime lab collected pursuant to this chapter.

TITLE 25. INTERNAL SECURITY AND PUBLIC SAFETY
PART 4. STATE POLICE
CHAPTER 194.
DNA DATA BASE AND DATA BANK ACT

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25 M.R.S. § 1573 (2000)
§ 1573. Responsibility for
DNA identification record system; procedural compatibility with the FBI


1. RESPONSIBILITY FOR SYSTEM. The Chief of the State Police is responsible for
DNA analysis and establishing, managing and administering the state DNA data base and the state DNA data bank to support law enforcement and for liaison with the FBI regarding the State's participation in CODIS. The state DNA data base must be physically located at the crime lab or at State Police Headquarters in Augusta. The state DNA data bank must be physically located at the crime lab.

2. PROCEDURAL COMPATIBILITY. The state
DNA data base established by the Chief of the State Police must be compatible with procedures specified by the FBI, including use of comparable test procedures, laboratory equipment, supplies and computer software.

3.
DNA ANALYSIS. Notwithstanding subsection 1, the Chief of the State Police is not required to collect or analyze DNA samples collected pursuant to section 1574 unless adequate funding is available.


TITLE 25. INTERNAL SECURITY AND PUBLIC SAFETY
PART 4. STATE POLICE
CHAPTER 194.
DNA DATA BASE AND DATA BANK ACT

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25 M.R.S. § 1574 (2000)
§ 1574. Blood sample required for
DNA analysis upon conviction


1. CONVICTION SUBSEQUENT TO EFFECTIVE DATE. A person convicted, on or after January 1, 1996, of a crime listed in subsection 4 shall submit to having a
DNA sample drawn and at the time of sentencing the court shall enter an order directing that the DNA sample be drawn. If the convicted person's sentence includes a straight term of imprisonment or a split term of imprisonment, the DNA sample may be drawn at any time following the commencement of the straight term or initial unsuspended portion of the term of imprisonment. If the convicted person's sentence includes a period of probation but no immediate imprisonment, the DNA sample may be drawn at any time following commencement of the probation period as directed by the probation officer. If the convicted person's sentence includes a period of probation, the court may attach the duty to submit to having a DNA sample drawn as a condition of probation.

2. CONVICTION PRIOR TO EFFECTIVE DATE. A person convicted and incarcerated prior to January 1, 1996, as a result of a conviction for a crime listed in this section, shall have a
DNA sample drawn before release from the corrections system.

3. JUVENILE OFFENDERS. If a juvenile court adjudicates a juvenile to have committed a juvenile crime that, if committed by an adult, would constitute an offense listed in this section, then the juvenile is subject to the requirements of this section.

4. APPLICABLE OFFENSES. This section applies to a person convicted of one or more of the following offenses or an attempt of one or more of the following offenses:

A. Murder or criminal homicide in the first or 2nd degree;

B. Felony murder;

C. Manslaughter;

D. Aggravated assault;

D-1. Elevated aggravated assault;

E. Gross sexual assault, including that formerly denominated as gross
sexual misconduct;

E-1. Rape;

F. Sexual abuse of a minor;

G. Unlawful sexual contact;

G-1. Visual sexual aggression against a child;

G-2. Sexual misconduct with a child under 14 years of age;

H. Kidnapping;

I. Criminal restraint;

J. Burglary;

K. Robbery;

L. Arson;

M. Aggravated criminal mischief; or

N. Any lesser included offense of any crime identified in paragraphs
A to M if the greater offense is initially charged. "Lesser included
offense" has the same meaning as in Title 17-A, section 13-A.



TITLE 25. INTERNAL SECURITY AND PUBLIC SAFETY
PART 4. STATE POLICE
CHAPTER 194.
DNA DATA BASE AND DATA BANK ACT

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25 M.R.S. § 1575 (2000)
§ 1575. Procedure for withdrawal of blood sample for
DNA analysis


1. COLLECTION EQUIPMENT. The crime lab shall provide collection equipment or a kit for the collection of a blood sample required by section 1574 to persons authorized to draw blood samples.

2. PERSON TO DRAW SAMPLE. Only a duly licensed physician, physician assistant, registered nurse, licensed practical nurse, person certified by the Department of Human Services or person whose occupational license or training allows that person to draw blood samples may draw a
DNA sample.

3. LIABILITY. A person authorized under this section to draw blood samples is not liable for damages or liable for the act of drawing a blood sample for
DNA analysis when that person exercises due care in drawing the blood sample.

4. CRIME LAB. All blood samples collected pursuant to this Act must be forwarded to the crime lab for
DNA analysis.

TITLE 25. INTERNAL SECURITY AND PUBLIC SAFETY
PART 4. STATE POLICE
CHAPTER 194.
DNA DATA BASE AND DATA BANK ACT

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25 M.R.S. § 1576 (2000)
§ 1576. Procedure for collection; conducting
DNA analysis


The Chief of the State Police may adopt rules governing the procedures to be used in the collection, submission, identification, analysis and storage of
DNA samples and the results of the typing of blood samples submitted pursuant to this Act. The DNA sample must be securely stored in the state DNA data bank. The results of the typing of the blood samples must be securely stored in the state DNA data base.



TITLE 25. INTERNAL SECURITY AND PUBLIC SAFETY
PART 4. STATE POLICE
CHAPTER 194.
DNA DATA BASE AND DATA BANK ACT

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25 M.R.S. § 1577 (2000)
§ 1577.
DNA records


1. CONFIDENTIALITY. All
DNA records are confidential and may not be disclosed to any person or agency unless disclosure is authorized by this section.

2. ACCESS TO RECORDS. The following persons or agencies may have access to
DNA records:

A. Local, county, state and federal criminal justice and law
enforcement agencies, including forensic laboratories serving the
agencies, for identification purposes that further official criminal
investigations;

B. The FBI for storage and maintenance of CODIS;

C. Medical examiners and coroners for the purpose of identifying
remains; and

D. A person who has been identified and charged with a criminal
offense as a result of a search of
DNA records stored in the state
DNA data base. A person who has been identified and charged with a
criminal offense has access only to that person's records and any
other records that person is entitled to under the Maine Rules of
Evidence.

3. STATISTICAL INTERPRETATION. Notwithstanding subsections 1 and 2,
DNA records may be released to advance DNA analysis methods and support statistical interpretation of DNA analysis, including development of population data bases, if personal identifying information is removed from DNA records prior to the release of those records.

4. EXPUNGEMENT. A person whose
DNA record has been stored in the state DNA data base may petition the Superior Court for expungement on the ground that the conviction justifying the inclusion of the DNA record in the state DNA data base has been reversed or dismissed. Upon receipt of an expungement order and a certified copy of the order reversing and dismissing the conviction, the Chief of the State Police shall purge from the state DNA data base the DNA record and all identifiable information resulting exclusively from the reversed conviction.


TITLE 25. INTERNAL SECURITY AND PUBLIC SAFETY
PART 4. STATE POLICE
CHAPTER 194.
DNA DATA BASE AND DATA BANK ACT

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

25 M.R.S. § 1578 (2000)
§ 1578. Unlawful dissemination


1. OFFENSE. A person is guilty of unlawful dissemination of a
DNA record if the person knowingly disseminates a DNA record in violation of this Act.

2. PENALTY. Unlawful dissemination of a
DNA record is a Class E crime.

 

MARYLAND

ARTICLE 88B. DEPARTMENT OF STATE POLICE
COORDINATE DUTIES OF DEPARTMENT

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

Md. Ann. Code art. 88B, § 12A (2001)
STATUS: CONSULT SLIP LAWS CITED BELOW FOR RECENT CHANGES TO THIS DOCUMENT
LEXSEE 2001 Md. ALS 35 -- See section 1.

§ 12A.
DNA data base system and repository


(a) Definitions. --

(1) In this section the following words have the meanings indicated.

(2) "CODIS" means the Federal Bureau of Investigation's "Combined
DNA Index System" that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories.

(3) "Crime Laboratory" means the Crime Laboratory Division of the Department of State Police.

(4) "Director" means the Director of the Crime Laboratory or the Director's designee.

(5) "
DNA" means deoxyribonucleic acid.

(6) "
DNA record" means DNA information stored in the statewide DNA data base system of the Department of State Police or CODIS and includes that information commonly referred to as a DNA profile.

(7) "
DNA sample" means a body fluid or tissue sample provided by any person convicted of a qualifying crime of violence or any body fluid or tissue sample submitted to the statewide DNA data base system for analysis pursuant to a criminal investigation.

(8) "Qualifying crime of violence" means:

(i) A violation of Article 27, § 35C of the Code that involves sexual abuse;

(ii) Rape in any degree;

(iii) A sexual offense in the first, second, or third degree;

(iv) Murder;

(v) Robbery under Article 27, § 486 or § 487 of the Code;

(vi) First degree assault; or

(vii) Attempts to commit these offenses.

(9) "Statewide
DNA data base system" means the DNA record system administered by the Department of State Police for identification purposes.

(10) "Statewide
DNA repository" means the State repository of DNA samples collected under this section.

(b) Establishment. --

(1) There is created within the Crime Laboratory a statewide
DNA data base system.

(2) The system shall be the central repository for all
DNA testing information as provided in this section.

(3) The Director shall:

(i) Administer and manage the system;

(ii) Consult with the Secretary on the adoption of appropriate regulations concerning system protocols and operations;

(iii) Ensure compatibility with Federal Bureau of Investigation and CODIS requirements, including the use of comparable test procedures, quality assurance, laboratory equipment, and computer software; and

(iv) Ensure the security and confidentiality of all records of the system.

(4) The Secretary, after consultation with the Director, shall adopt appropriate regulations concerning system protocols and operation.

(c) Collection of
DNA. -- Pursuant to regulations adopted by the Secretary after consultation with the Director under this section, a person convicted of a qualifying crime of violence shall:

(1) Have a
DNA sample collected upon intake to any prison or detention facility; or

(2) If not sentenced to a term of imprisonment, provide a
DNA sample as a condition of sentence or probation.

(d) Additional
DNA sample. -- A second DNA sample shall be taken if ordered by the court for good cause shown.

(e) Failure to provide
DNA as probation violation. -- If a person is not sentenced to a term of imprisonment, failure to provide a DNA sample within 90 days of notice by the Director shall be considered a violation of probation.

(f) Retroactive collection. -- A person who has been convicted of a qualifying crime of violence prior to October 1, 1999, and who remains incarcerated on that date shall submit a
DNA sample to the Department of State Police.

(g) Purpose of testing. --

(1) To the extent fiscal resources are available,
DNA samples shall be tested for the following purposes:

(i) To analyze and type the genetic markers contained in or derived from
DNA samples;

(ii) In the furtherance of an official investigation into a criminal offense;

(iii) To assist in the identification of human remains;

(iv) To assist in the identification of missing persons; and

(v) For research and administrative purposes, including:

1. Development of a population data base after personal identifying information is removed;

2. Support of identification research and protocol development of forensic
DNA analysis methods; and

3. Quality control purposes.

(2) (i) Only
DNA records that directly relate to the identification of individuals shall be collected and stored.

(ii) These records may not be used for any purposes other than those specified in this section.

(h) Storage. --

(1) The
DNA record of identification characteristics resulting from the DNA testing shall be stored and maintained by the Crime Laboratory in the statewide DNA data base system.

(2) The
DNA sample shall be stored and maintained by the Crime Laboratory in the statewide DNA repository.

(i) Place of collection. -- Pursuant to regulations adopted by the Secretary, after consultation with the Director:

(1) Each
DNA sample required to be collected under this section from persons who are incarcerated as of October 1, 1999, or are sentenced to a term of incarceration after that date shall be collected at the place of incarceration; and

(2)
DNA samples from persons who are not sentenced to a term of confinement shall be collected at a facility specified by the Director.

(j) Authorized collector. --
DNA samples to be submitted for analysis shall be collected by a:

(1) Correctional health nurse technician;

(2) Physician;

(3) Registered nurse;

(4) Licensed practical nurse;

(5) Laboratory technician; or

(6) Phlebotomist.

(k) Regulations. --

(1) The Secretary, after consultation with the Director, shall adopt regulations governing the procedures to be used for:

(i) Collection, submission, identification, analysis, storage, and disposal of
DNA samples; and

(ii) Access to and dissemination of typing results and personal identification information of samples that are submitted under this section.

(2) (i)
DNA samples shall be securely stored in the statewide DNA repository.

(ii) Typing results shall be securely stored in the statewide
DNA data base system.

(3) (i) Any procedure adopted by the Director shall include quality assurance guidelines to ensure that
DNA identification records meet standards and audit requirements for laboratories that submit DNA records for inclusion in the statewide DNA data base system and CODIS.

(ii) The Crime Laboratory and each analyst performing
DNA analyses at the Crime Laboratory shall undergo, at regular intervals not exceeding 180 days, external proficiency testing, including at least one external blind test, by a DNA proficiency testing program that meets the standards issued:

1. Under § 1003 of the federal
DNA Identification Act of 1994; or

2. Under the guidelines for a quality assurance program for
DNA analysis (known as the "TWGDAM" guidelines).

(4) Subject to subsection (o) of this section, records of testing shall be permanently retained on file at the Crime Laboratory.

(l) Duties and obligations of Crime Laboratory. --

(1) The Crime Laboratory shall:

(i) Receive
DNA samples for analysis, classification, and storage;

(ii) File the
DNA record of identification characteristic profiles of DNA samples submitted to the laboratory; and

(iii) Make information relating to
DNA samples and DNA records available to other agencies and individuals as authorized by this section.

(2) The Director may contract with a qualified
DNA laboratory that meets the guidelines established by the Director to complete DNA typing analyses.

(m) Data availability. --

(1) The typing results and personal identification information of the
DNA profile of an individual in the statewide DNA data base system may be made available to the following agencies or persons upon written or electronic request after verification by the Director that a match has been made in the population data base and the request is in the furtherance of any of the purposes set forth in subsection (g) of this section:

(i) Federal, State, and local law enforcement agencies;

(ii) Crime laboratories that serve federal, State, and local law enforcement agencies that have been approved by the Director;

(iii) A State's Attorney's office or other prosecutorial office; and

(iv) Any person participating in a judicial proceeding in which the data base information may be offered as evidence.

(2) (i) The typing results and personal identification information of the
DNA profile of an individual in the statewide DNA data base system shall be made available to a defendant or a defendant's counsel on written order of the court in which the case is pending.

(ii) A search of the data base shall be conducted to determine the existence of a match to
DNA obtained from crime scene evidence taken in relation to the crime for which a defendant is charged if, upon the request of that defendant, a written court order commands the data base search.

(iii) Nothing in this section limits a court from ordering any discovery of a
DNA record or other related material in a criminal case.

(iv) The Director shall maintain a file of all orders issued under this paragraph.

(3) The Secretary, after consultation with the Director, shall adopt regulations governing the methods of obtaining information from the statewide
DNA data base system and CODIS which shall include procedures for verification of the identity and authority of the individual or agency requesting the information.

(4) (i) The Director shall create a population data base comprised of
DNA samples obtained under this section.

(ii) All personal identifiers shall be removed before the information is entered into the population data base.

(iii) Nothing shall prohibit the sharing or disseminating of population data base information with:

1. Federal, State, or local law enforcement agencies;

2. Crime laboratories that serve federal, State, and local law enforcement agencies that have been approved by the Director;

3. A State's Attorney's office; or

4. Any third party that the Director deems necessary to assist the Crime Laboratory with statistical analyses of the population data base.

(iv) The population data base may be made available to and searched by any agency participating in the CODIS system.

(n) Use as evidence. -- Any match obtained between an evidence sample and a data base entry may only be used as probable cause to obtain a blood sample from the subject and is not admissible at trial unless confirmed by additional testing.

(o) Expungement. --

(1) A person whose
DNA record or profile has been included in the statewide DNA data base system and whose DNA sample is stored in the statewide DNA repository may request that information be expunged on the grounds that the conviction which resulted in the inclusion of the person's DNA record or profile in the statewide DNA data base system or the inclusion of the person's DNA sample in the statewide DNA repository meets the expungement criteria specified in Article 27, § 737 of the Code.

(2) Expungement proceedings shall be conducted in accordance with Article 27, § 737 of the Code.

(3) Upon receipt of an order of expungement, the Director shall purge any
DNA record, DNA sample, or other identifiable information covered by the order from the statewide DNA data base system and the statewide DNA repository.

(p) Unlawful disclosures. --

(1) A person who, by virtue of employment or official position, has possession of or access to individually identifiable
DNA information contained in the statewide DNA data base system or statewide DNA repository and who willfully discloses that information in any manner to any person or agency not entitled to receive that information is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding 3 years or both.

(2) A person who, without authorization, willfully obtains individually identifiable
DNA information from the statewide DNA data base system or repository is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding 3 years or both.

HISTORY: 1994, ch. 165, § 3; ch. 166, § 3; ch. 458; 1995, ch. 3, § 2; 1996, ch. 10, § 1; 1999, ch. 490; 2000, ch. 288.

NOTES:
EFFECT OF AMENDMENTS. --Chapter 490, Acts 1999, effective Oct. 1, 1999, added (a) (8) (iv) to (vii); in (c) (2), deleted "be ordered by the court to" following "of imprisonment," and added "or probation" at the end; inserted present (d) and (e), and redesignated the remaining subsections accordingly; in present (f), substituted "October 1, 1999" for "October 1, 1994," and substituted "Department of State Police" for "Department of Public Safety and Correctional Services"; substituted "October 1, 1999" for "October 1, 1994" in (i) (1); in (i) (2), deleted "prison or detention" preceding "facility specified," and substituted "Director" for "sentencing court" at the end; substituted "subsection (o)" for "subsection (m)" in (i) (4); and substituted "subsection (g)" for "subsection (e)" in (m).
Chapter 288, Acts 2000, effective Oct. 1, 2000, substituted "under Article 27, § 486 or § 487 of the Code" for "or robbery with a deadly weapon" in (a) (8) (v).

EDITOR'S NOTE. --Section 3, ch. 288, Acts 2000, provides that "this Act shall only apply to offenses committed on or after October 1, 2000 and may not be construed to apply in any way to offenses committed before October 1, 2000."

USE OF
DNA EVIDENCE. --If a defendant's blood is obtained pursuant to a warrant for the purpose of DNA testing, no matter how many times defendant's blood is tested, the DNA results are identical, and support for the proposition that legally obtained DNA evidence is available for a use different from that for which it is originally taken is readily available in the analogue of fingerprint data banks. Wilson v. State, 132 Md. App. 510, 752 A.2d 1250 (2000).



 

MASSACHUSETTS

PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22. DEPARTMENT OF PUBLIC SAFETY

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22, § 1 (2001)
§ 1. Department of Public Safety.

There shall be a department of public safety under the supervision and control of a commissioner of public safety.

HISTORY:
1865, 249, § 1; 1871, 394, § 1; 1874, 405; 1875, 15, §§ 1, 5; 1879, 305, §§ 1, 3, 12; PS 1882, 103, §§ 1, 3; RL 1902, 108, § 1; 1904, 318, § 1; 1919, 350, §§ 99, 100

NOTES:

EDITORIAL NOTE-
Acts 1991, ch 412, § 132, entitled "An act to consolidate certain police forces in the Commonwealth", which was approved Dec 27, 1991, provides as follows:

Section 132. Any reference in a general or special law, rule, or regulation to the department of public safety as constituted prior to the effective date of this act in which the context of such reference shall refer to the duties, functions or activities of the division of the state police shall be deemed to signify the department of state police as established by the provisions of chapter twenty-two C of the General Laws; and any reference in general or special law, rule or regulation to the commissioner of public safety as constituted prior to the effective date of this act in which the context of such reference shall refer to the duties, functions or activities of the head of the division of state police shall be deemed to signify the colonel of state police, as defined by the provisions of section one of said chapter twenty-two C.

CROSS REFERENCES--
Departments, agencies, etc., within the Executive Office of Public Safety, see ALM GL c 6A § 18, supra.

General provisions with respect to state departments, see ALM GL c 30 §§ 1 et seq.

Powers and duties generally, see ALM GL c 147 §§ 1 et seq.

New England State Police Compact, see ALM Spec L c 111 et seq.

CODE OF MASSACHUSETTS REGULATIONS--
Administrative regulations, 520 CMR 11.01 et seq.

ANNOTATIONS--
Admissibility of
DNA identification evidence. 84 ALR4th 313.


PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22. DEPARTMENT OF PUBLIC SAFETY

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22, § 2 (2001)
§ 2. Commissioner.

Upon the expiration of the term of office of a commissioner, his successor shall be appointed by the governor for a term coterminous with that of the governor. The position of commissioner shall be classified in accordance with section forty-five of chapter thirty and the salary shall be determined in accordance with section forty-six C of said chapter thirty and the commissioner shall devote his full time during business hours to the duties of his office. FORMS

Form 1 -- Notice of Appointment of Commissioner of Public Safety
Form 2 -- Acceptance of Appointment as Commissioner of Public Safety 1 Notice of Appointment of Commissioner of Public Safety To: [-----] [name of appointee]
[-----] [address], Commonwealth of Massachusetts

This is to advise you that by virtue of the authority vested in me as Governor of the Commonwealth of Massachusetts by Section 2 of Chapter 22 of the Annotated Laws of Massachusetts, you have this day been appointed as the Commissioner of Public Safety of the Commonwealth of Massachusetts. This appointment shall be for a term of [-----] years, commencing [-----] , 19 [--] , with all the powers and duties incident to such office, at an annual salary of $ [---] , payable [-----] [in equal monthly installments or as the case may be], effective [-----] , 19 [--] .

This appointment is subject to your acceptance and subject to the laws of the Commonwealth of Massachusetts and the rules and regulations of the Department of Public Safety of the Commonwealth of Massachusetts.

Dated [-----] , 19 [--] .
[Signature of appointing authority]
2 Acceptance of Appointment as Commissioner of Public Safety To: [-----] [appointing officer]

I, [-----] [name of appointee], of [-----] [address], City of [-----] , County of [-----] , Commonwealth of Massachusetts, having been tendered appointment to the office of Commissioner of Public Safety of the Commonwealth of Massachusetts by [-----] [appointing authority] on [-----] , 19 [--] , hereby accept such appointment and agree to discharge my duties as the Commissioner of Public Safety of the Commonwealth of Massachusetts to the best of my ability and to abide by the laws of the Commonwealth of Massachusetts and the rules and regulations of the Department of Public Safety of the Commonwealth of Massachusetts.

Dated [-----] , 19 [--] .
[Signature]
[Acknowledgment]


HISTORY:
1865, 249, §§ 1, 3; 1867, 349, § 2; 1871, 394, §§ 1, 3; 1872, 355; 1874, 405; 1875, 15, §§ 1, 6; 1879, 305, §§ 1, 3, 5; PS 1882, 103, §§ 1, 3, 5; 1887, 127; 1892, 128; RL 1902, 108, §§ 1, 2, 5; 1904, 318, § 1; 1906, 480; 1913, 834; 1918, 275, § 1; 1919, 350, § 100; 1923, 330; 1946, 591, § 32; 1948, 517, § 1; 1949, 690; 1951, 570; 1955, 730, § 27; 1963, 801, § 46; 1967, 844, § 15; 1969, 766, § 29; 1971, 116, § 27; 1972, 300, § 25; 1973, 426, § 28; 1974, 422, § 33; 1977, 234, §§ 88-90; 1977, 872, §§ 85, 86, 87; 1980, 354, § 16; 1981, 699, § 40

NOTES:

EDITORIAL NOTE--
The 1946, 1948, 1949 and 1951 amendments increased the salary of the commissioner.

The 1955 amendment affected only the second sentence of this section, increasing the salary of the commissioner.

The 1963 amendment increased the commissioner's maximum salary from $ 12,500 to $ 16,000 and added the requirement that he devote full time during business hours to the duties of his office.

The 1967 amendment rewrote the section to eliminate the provision that the appointment required the advice and consent of the council, and to provide that the commissioner's term of office be coterminous with that of the Governor.

The 1969 amendment increased the commissioner's salary from $ 16,000 to $ 19,900.

The 1971 amendment increased the commissioner's salary from $ 19,900 to $ 21,094.

The 1972 amendment increased the commissioner's salary from twenty-one thousand ninety-four dollars to twenty-two thousand and one dollars.

The 1973 amendment increased the commissioner's salary from $ 22,001 to $ 22,727. Section 48 of the amending act provides, in part, as follows:

Section 48. Notwithstanding any provisions of this act to the contrary, the provisions of . . . section two of chapter twenty-two, . . . in effect immediately prior to the effective date of this act, shall remain in effect and apply to appointments to the offices referred to therein which are made on or after said effective date.

The 1974 amendment increased the commissioner's salary from $ 22,727 to $ 24,136.

The first 1977 amendment, by § 88 increased the salary of the commissioner from $ 24,136 to $ 24,436, effective July 1, 1976; by § 89 increased such officer's salary to $ 24,686, effective January 1, 1977; and by § 90 again increased this officer's salary to $ 24,986, effective April 1, 1977.

The second 1977 amendment, by § 85, ch 872, increased the salary of the commissioner from$ 24,986 to $ 26,011, effective July 31, 1977; by § 86 increased such officer's salary to $ 26,536, effective October 1, 1978; by § 87 again increased this officer's salary to $ 27,136, effective September 30, 1979.

The 1980 amendment rewrote the second sentence of this section increasing, from $ 27,136 to $ 39,000, the salary of the commissioner of public safety.

The 1981 amendment deleted the second sentence, providing that the commissioner of public safety receive a salary of $ 39,000, and substituted a sentence providing that said position be classified in accordance with § 45 of chapter 30 of the General Laws, and the salary be determined in accordance with § 46C of chapter 30 of the General Laws.

ANNOTATIONS--
Admissibility of
DNA identification evidence. 84 ALR4th 313.

LAW REVIEW REFERENCES--
Coven, First amendment rights of policymaking public employees. 12 Harv Civil Rights L Rev 559, Summer, 1977.

FORMS:
See "FORMS" heading following "NOTES SECTION", infra.

CASE NOTES

Delegation by Fire Prevention Commissioner to mayor and Board of Street Commissioners of Boston, under St. 1914, ch. 795, § 4, of authority to grant permits to keep, store, and sell gasoline, was not terminated by St. 1919, ch. 350, §§ 99, 101, 104, (this section et seq.) abolishing office of Fire Prevention Commissioner, but transferring his powers to Department of Public Safety. Foss v Wexler (1922) 242 Mass 277, 136 NE 243.

By St. 1919, ch. 350, § 99, predecessor of this section, office of Fire Prevention Commissioner was abolished and all rights, powers, duties and obligations of that officer were transferred to Department of Public Safety. Guinan v Famous Players-Lasky Corp. (1929) 267 Mass 501, 167 NE 235.

Under §§ 1, 9, and 9A of this chapter, patrolman in Division of State Police of Department of Public Safety of Commonwealth who was assigned to duty as special officer to stimulate greater public interest in highway safety, was member of paid police department within meaning of insurance policy excluding coverage "while the Insured is performing any duty as a member or employee of a paid fire or police department." Hayes v Lumbermens Mut. Casualty Co. (1941) 310 Mass 81, 37 NE2d 121.

PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22. DEPARTMENT OF PUBLIC SAFETY

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22, § 3 (2001)
§ 3. Duties of Commissioner; Division of Inspection.

The commissioner shall be the executive and administrative head of the department. There shall be in the department a division of inspection as established by section four A, under the charge of a director to be known as the chief of inspections.

HISTORY:
1865, 249, § 1; 1871, 394, § 3; 1874, 405; 1875, 15, § 1; 1879, 305, § 3; PS 1882, 103, § 3; 1886, 354, § 1; 1888, 113; 1894, 444, § 1; 481, § 1; RL 1902, 32, § 1; 1902, 108, § 1; 1902, 142, §§ 1, 2; 1903, 365, § 1; 1904, 318, § 1; 1904, 433, §§ 1, 3; 1906, 521, § 1; 1911, 619, § 1; 1913, 610, §§ 1, 6; 1914, 795, § 2; 1919, 350, §§ 101, 102; 1954, 650; 1956, 584; 1991, 412, §§ 10, 11
Amended by 1996, 151, § 88, approved June 30, 1996, by § 690, effective July 1, 1996

NOTES:

EDITORIAL NOTE--
The 1954 amendment added at the end of this section a paragraph relative to a new division of subversive activities.

The 1956 amendment added a sentence at the end of the last paragraph.

The 1991 amendment, by § 10, in the second sentence of the first paragraph, preceding " division of inspection", deleted "division of state police under his own immediate charge, a"; by § 11, deleted the former second paragraph which read: "There shall be in the department a division of subversive activities to receive reports of subversive activities within the commonwealth, to investigate such reports, to maintain records, to co-operate with the law-enforcement agencies of the commonwealth, and to report annually and from time to time as it may deem necessary to the commissioner and to the governor. The commissioner may assign to duty in such division officers of the uniformed branch of the division of state police who, during such assignment, may hold such rank as the commissioner shall determine.".

The 1996 amendment substituted the second sentence for one which read: "There shall be in the department a division of inspection under the charge of a director to be known as chief of inspections, and a division of fire prevention under the charge of a director to be known as the state fire marshal.".

CROSS REFERENCES--
Powers and duties generally, see ALM GL c 147 § 1.

Duties under New England State Police Compact, see ALM Spec L c 111 §§ 2, 3.

ANNOTATIONS--
Admissibility of
DNA identification evidence. 84 ALR4th 313.

CASE NOTES

By St. 1919, ch. 350, § 101, predecessor of this section Division of Fire Prevention was created in Department of Public Safety, under charge of director to be known as State Fire Marshal, who succeeded to duties of former Fire Prevention Commissioner under supervision of Commissioner of Public Safety. Foss v Wexler (1922) 242 Mass 277, 136 NE 243.

Delegation by Fire Prevention Commissioner to mayor and Board of Street Commissioners of Boston, under St. 1914, ch. 795, § 4, of authority to grant permits to keep, store, and sell gasoline, was not terminated by St. 1919, ch. 350, §§ 99, 101, 104 (ALM GL c 22 §§ 1 et seq.), abolishing office of Fire Prevention Commissioner, but transferring his powers to Department of Public Safety. Foss v Wexler (1922) 242 Mass 277, 136 NE 243.

Under this section, State Fire Marshal is director in charge of division of Department of Public Safety and, under several statutes, his decisions are subject to appeal to Commissioner of Public Safety. Marcus v Commissioner of Public Safety (1926) 255 Mass 5, 150 NE 903.

By St. 1919, ch. 350, § 101, predecessor of this section, duties of Fire Prevention Commissioner, whose office was abolished, were transferred to State Fire Marshal. Guinan v Famous Players-Lasky Corp. (1929) 267 Mass 501, 167 NE 235.

When office of Fire Prevention Commissioner was abolished by St. 1919, ch. 350, § 99 and rights, powers, duties and obligations of that office were transferred to Department of Public Safety to be exercised by State Fire Marshal, under predecessor of this section, it was provided by same act that all regulations made by any officer, board, or commission which was abolished by act should remain in full force and effect until revoked or modified by department which succeeded to rights, powers, duties and obligations of abolished agency; accordingly, where regulations of Fire Prevention Commissioner had been promulgated prior to abolition of that office, relating to disposition of motion picture film, which regulations had not been revoked or modified by subsequent legislation or regulations, and no new regulations relating to that subject had been promulgated by State Fire Marshal, prior regulations remained in force. Guinan v Famous Players-Lasky Corp (1929) 267 Mass 501, 167 NE 235.

Where regulations promulgated by Fire Prevention Commissioner relative to disposition of scrap motion picture film, remained in effect after office of Fire Prevention Commissioner was abolished and his duties transferred to State Fire Marshal, under this section, violation of such regulations is evidence of negligence. Guinan v Famous Players-Lasky Corp. (1929) 267 Mass 501, 167 NE 235.

Commissioner of Public Safety had authority to promulgate rules prohibiting members of uniform branch of state police from seeking election to political office. O'Hara v Commissioner of Public Safety (1975) 367 Mass 376, 326 NE2d 308.

Although ALM GL c 22 § 4A, as amended, does not give Commissioner of Public Safety any direct responsibility for or direct authority over conduct of local building inspections by local inspectors, said statute does permit commissioner, in exercise of his supervisory authority, to independently override any action or refusal to act on part of local authorities, and to independently enforce State building code through use of state inspectors whenever commissioner deems it necessary to insure implementation of code. 1974-1975 Op AG 33.

Chief of Inspections within Department of Public Safety does not have police powers unless they are specifically conferred by commissioner. 81/82 Op AG 6.



PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22. DEPARTMENT OF PUBLIC SAFETY

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22, § 5 (2001)
§ 5. Deputy Commissioner--Secretary.

There shall be in the department a deputy commissioner who shall also be the secretary. He shall be appointed by the commissioner, with the approval of the governor and council, and may, with like approval, be removed at the pleasure of the commissioner. The deputy commissioner, in addition to his duties as secretary under section twelve, shall perform such other duties as may be assigned to him by the commissioner and during the illness, absence or other disability of the commissioner, he shall perform the official duties of the commissioner. FORMS

Form 1 -- Notice of Appointment of Deputy Commissioner
Form 2 -- Acceptance of Appointment as Deputy Commissioner 1 Notice of Appointment of Deputy Commissioner To: [-----] [name of appointee]
[-----] [address], Commonwealth of Massachusetts

This is to advise you that by virtue of the authority vested in me as the Commissioner of Public Safety of the Commonwealth of Massachusetts, by Section 5 of Chapter 22 of the Annotated Laws of Massachusetts, you have this day been appointed Deputy Commissioner of Public Safety of the Commonwealth of Massachusetts. This appointment shall be for a term of [-----] years, commencing [-----] , 19 [--] , with all the powers and duties incident to such office, at an annual salary of $ [---] , payable [-----] [in equal monthly installments or as the case may be], effective [-----] , 19 [--] .

This appointment is subject to your acceptance and subject to the laws of the Commonwealth of Massachusetts and the rules and regulations of the Department of Public Safety of the Commonwealth of Massachusetts.

Dated [-----] , 19 [--] .
[Signature of appointing authority]
2 Acceptance of Appointment as Deputy Commissioner To: [-----] [appointing officer]

I, [-----] [name of appointee], of [-----] [address], City of [-----] , County of [-----] , Commonwealth of Massachusetts, having been tendered appointment to the office of Deputy Commissioner of Public Safety of the Commonwealth of Massachusetts by the Commissioner of Public Safety of the Commonwealth of Massachusetts on [-----] , 19 [--] , hereby accept such appointment and agree to discharge my duties as Deputy Commissioner of Public Safety of the Commonwealth of Massachusetts to the best of my ability and to abide by the laws of the Commonwealth of Massachusetts and the rules and regulations of the Department of Public Safety of the Commonwealth of Massachusetts.

Dated [-----] , 19 [--] .
[Signature]
[Acknowledgment]


HISTORY:
1920, 619, § 2; 1930, 256; 1953, 644; 1956, 713

NOTES:

EDITORIAL NOTE--
The 1953 amendment rewrote this section, adding the provisions as to the deputy commissioner. The former section made provision only for a secretary.

The 1956 amendment omitted an exception formerly following the end of the last sentence.

ANNOTATIONS--
Admissibility of
DNA identification evidence. 84 ALR4th 313.

TEXTS--
3 Proof of Cases in Massachusetts $ 96:13.


PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22E. STATE
DNA DATABASE

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22E, § 1 (2001)
§ 1. Definitions.

As used in this chapter, the following words shall have the following meanings, unless the context clearly requires otherwise:--

"CODIS" or "combined
DNA index system", the Federal Bureau of Investigation's national DNA identification index system which facilitates the storage and exchange of DNA records submitted by state and local criminal justice and law enforcement agencies.

"Colonel", the colonel of state police.

"
DNA", deoxyribonucleic acid.

"
DNA analysis", DNA typing tests that generate numerical identification information and are obtained from a DNA sample.

"
DNA record", DNA information that is derived from a DNA sample and DNA analysis and is stored in the state DNA database or in CODIS, including all records pertaining to DNA analysis.

"
DNA sample", biological evidence of any nature that is utilized to conduct DNA analysis.

"Department", the department of state police.

"Director", the director of the crime laboratory within the department of state police.

"FBI", the Federal Bureau of Investigation within the United States department of justice.

"State
DNA database", the DNA identification records system maintained and administered by the director.

HISTORY:
Added by 1997, 106, § 7, approved Sept 30, 1997, effective Dec 29, 1997

NOTES:

CODE OF MASSACHUSETTS REGULATIONS--
Testing and Analysis, Quality Assurance, Computerized Storage, Retrieval, and Dissemination for the State
DNA Database 515 CMR 2.00.

ANNOTATIONS--
Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.

CASE NOTES

While involuntary collection of blood sample from inmates, parolees, and probationers for purposes of
DNA database constitutes search and seizure, there is no unreasonable search and seizure because state's interest in preserving permanent identification record of convicted persons for resolving past and future crimes outweigh's minimal bodily intrusion involved in taking small amount of blood by pin prick. Landry v Attorney General (1999) 429 Mass 336, 709 NE2d 1085.



PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22E. STATE
DNA DATABASE

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22E, § 2 (2001)
§ 2. State
DNA Database.

There is hereby established within the department of state police a state
DNA database under the direction of the director. The director shall be a person knowledgeable in the field of forensic sciences and shall be paid an annual salary which shall be set by the colonel in consultation with the secretary of public safety and the secretary for administration and finance. Such salary shall be competitive with comparable or similar positions in other jurisdictions. The director shall have responsibility for DNA analysis and the management and administration of the state DNA database.

HISTORY:
Added by 1997, 106, § 7, approved Sept 30, 1997, effective Dec 29, 1997

NOTES:

CODE OF MASSACHUSETTS REGULATIONS--
Testing and Analysis, Quality Assurance, Computerized Storage, Retrieval, and Dissemination for the State
DNA Database 515 CMR 2.00.

ANNOTATIONS--
Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.

CASE NOTES

While involuntary collection of blood sample from inmates, parolees, and probationers for purposes of
DNA database constitutes search and seizure, there is no unreasonable search and seizure because state's interest in preserving permanent identification record of convicted persons for resolving past and future crimes outweigh's minimal bodily intrusion involved in taking small amount of blood by pin prick. Landry v Attorney General (1999) 429 Mass 336, 709 NE2d 1085.

PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22E. STATE
DNA DATABASE

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22E, § 3 (2001)
§ 3. Submission of
DNA Sample by Persons Convicted of Certain Offenses.

Any person who is convicted of an offense under the provisions of section 1, 13, 13B, 13F, 13H, 14, 15, 16, 17, 18, 18A, 18B, 18C, 22, 22A, 23, 24, 24B or 26 of chapter 265, section 14 or 15 of chapter 266 or section 2, 3, 4A, 4B, 16, 17, 29, 29A, 29B, 35, 35A or 53A of chapter 272 or of an attempt or a conspiracy to commit any of the aforementioned offenses shall submit a
DNA sample which shall be collected by a person authorized pursuant to section 4, to the department within 90 days of such conviction, in accordance with regulations or procedures established by the director. The results of such sample shall become part of the state DNA database. The submission of such DNA sample shall not be stayed pending a sentence appeal, motion for new trial, appeal to an appellate court or other post conviction motion or petition.

HISTORY:
Added by 1997, 106, § 7, approved Sept 30, 1997, effective Dec 29, 1997

NOTES:

EDITORIAL NOTE--
Section 8 of the inserting act, provides as follows:

Section 8. Any person convicted of any offense listed in section 3 of chapter 22E of the General Laws, who is incarcerated in any prison or house of correction on the effective date of this act, notwithstanding the date of such conviction, shall submit a
DNA sample to the department within 90 days of the effective date of this act or prior to release from custody, whichever first occurs. Any person currently on probation or parole as the result of a conviction or judicial determination resulting from a charge of any of the above listed offenses, notwithstanding of the date of such conviction or judicial determination, shall submit a DNA sample to the department within 90 days of the effective date of this act.

CODE OF MASSACHUSETTS REGULATIONS--
Testing and Analysis, Quality Assurance, Computerized Storage, Retrieval, and Dissemination for the State
DNA Database 515 CMR 2.00.

ANNOTATIONS--
Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.

CASE NOTES

While involuntary collection of blood sample from inmates, parolees, and probationers for purposes of
DNA database constitutes search and seizure, there is no unreasonable search and seizure because state's interest in preserving permanent identification record of convicted persons for resolving past and future crimes outweigh's minimal bodily intrusion involved in taking small amount of blood by pin prick. Landry v Attorney General (1999) 429 Mass 336, 709 NE2d 1085.

St 1997 c 106 § 8 requires person convicted of any offense listed in ALM GL c 22E § 3, who is incarcerated on effective date of c 106, to provide
DNA sample, even if offense for which person is currently incarcerated is not listed offense. Murphy v Department of Correction (1999) 429 Mass 736, 711 NE2d 149.

Person previously convicted of offense listed in ALM GL c 22E § 3 and incarcerated for any offense on effective date of St 1997 c 106 must provide
DNA sample while person previously convicted of listed offense but not incarcerated on effective date need not provide such sample. Murphy v Department of Correction (1999) 429 Mass 736, 711 NE2d 149.


PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22E. STATE
DNA DATABASE

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22E, § 4 (2001)
§ 4. Director To Establish Regulations or Procedures for the Collection of
DNA Samples; Costs.

(a) The director may establish regulations or procedures for the collection of
DNA samples, including standards for training and licensing personnel who may collect such samples. Only a physician, registered professional nurse, licensed practical nurse, phlebotomist, health care worker with phlebotomist training or a person licensed and trained by the director shall collect DNA samples pursuant to section 3. No person authorized under this section to collect DNA samples, including blood samples, shall be subject to civil liability for the act of withdrawing blood, or any other act directly related to the taking of a DNA sample; provided, however, that they shall employ recognized medical procedures and comply with all regulations or procedures promulgated by the director for the collection of DNA samples. Duly authorized law enforcement and correction personnel may employ reasonable force to assist in collecting DNA samples in cases where an individual refuses to submit to such collection as required under this chapter; provided, further, that such law enforcement and correction personnel shall not be subject to criminal prosecution or civil liability for the use of such reasonable force.

(b) The cost of preparing, collecting and processing a
DNA sample shall be assessed against the person required to submit a DNA sample, unless such person is indigent as defined in section 27A of chapter 261. The cost of preparing, collecting and processing a DNA sample shall be determined by the secretary for administration and finance in consultation with the director and shall be paid to the department and retained by it to offset costs associated with creating, maintaining and administering the state DNA database.

HISTORY:
Added by 1997, 106, § 7, approved Sept 30, 1997, effective Dec 29, 1997

NOTES:

CODE OF MASSACHUSETTS REGULATIONS--
Testing and Analysis, Quality Assurance, Computerized Storage, Retrieval, and Dissemination for the State
DNA Database 515 CMR 2.00.

ANNOTATIONS--
Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.

CASE NOTES

While involuntary collection of blood sample from inmates, parolees, and probationers for purposes of
DNA database constitutes search and seizure, there is no unreasonable search and seizure because state's interest in preserving permanent identification record of convicted persons for resolving past and future crimes outweigh's minimal bodily intrusion involved in taking small amount of blood by pin prick. Landry v Attorney General (1999) 429 Mass 336, 709 NE2d 1085.

Where Department of Correction had regulations [103 CMR 505.6-505.7] defining when and in what manner reasonable force may be used against inmate, director of state crime laboratory was not required to promulgate regulations detailing how law enforcement and correction personnel should act in specific situations when assisting in collecting
DNA samples. Landry v Attorney General (1999) 429 Mass 336, 709 NE2d 1085.



TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22E. STATE
DNA DATABASE

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22E, § 5 (2001)
§ 5.
DNA Collection Materials Provided by the Department.

The department shall provide all blood sample vials, collection tubes, mailing tubes, other
DNA sample collection materials, labels and instructions for the collection of DNA samples pursuant to this chapter.

HISTORY:
Added by 1997, 106, § 7, approved Sept 30, 1997, effective Dec 29, 1997

NOTES:

CODE OF MASSACHUSETTS REGULATIONS--
Testing and Analysis, Quality Assurance, Computerized Storage, Retrieval, and Dissemination for the State
DNA Database 515 CMR 2.00.

ANNOTATIONS--
Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.

CASE NOTES

While involuntary collection of blood sample from inmates, parolees, and probationers for purposes of
DNA database constitutes search and seizure, there is no unreasonable search and seizure because state's interest in preserving permanent identification record of convicted persons for resolving past and future crimes outweigh's minimal bodily intrusion involved in taking small amount of blood by pin prick. Landry v Attorney General (1999) 429 Mass 336, 709 NE2d 1085.



PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22E. STATE
DNA DATABASE

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22E, § 6 (2001)
§ 6. Filing and Storage of
DNA Samples.

All
DNA samples collected pursuant to sections 3 and 4 shall be forwarded to the director for the purpose of DNA analysis. The director shall provide for the receipt and analysis of DNA samples and for the filing and storage of DNA records derived from such DNA analysis in the state DNA database. The director shall promulgate regulations governing the collection, submission, receipt, identification, storage and disposal of DNA samples.

HISTORY:
Added by 1997, 106, § 7, approved Sept 30, 1997, effective Dec 29, 1997

NOTES:

CODE OF MASSACHUSETTS REGULATIONS--
Testing and Analysis, Quality Assurance, Computerized Storage, Retrieval, and Dissemination for the State
DNA Database 515 CMR 2.00.

ANNOTATIONS--
Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.

CASE NOTES

While involuntary collection of blood sample from inmates, parolees, and probationers for purposes of
DNA database constitutes search and seizure, there is no unreasonable search and seizure because state's interest in preserving permanent identification record of convicted persons for resolving past and future crimes outweigh's minimal bodily intrusion involved in taking small amount of blood by pin prick. Landry v Attorney General (1999) 429 Mass 336, 709 NE2d 1085.

PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22E. STATE
DNA DATABASE

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22E, § 7 (2001)
§ 7. Establishment of Laboratories and Facilities for
DNA Analysis.

The department is hereby authorized to establish such laboratories and facilities within the commonwealth as may be necessary to conduct forensic and
DNA analysis. Notwithstanding the provisions of any general or special law to the contrary, the department is hereby authorized to enter into such contracts, agreements or partnerships with governmental or nongovernmental entities, including educational, scientific, medical or not for profit entities, as the director may deem necessary to meet the purposes of this chapter.

HISTORY:
Added by 1997, 106, § 7, approved Sept 30, 1997, effective Dec 29, 1997

NOTES:

CODE OF MASSACHUSETTS REGULATIONS--
Testing and Analysis, Quality Assurance, Computerized Storage, Retrieval, and Dissemination for the State
DNA Database 515 CMR 2.00.

ANNOTATIONS--
Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.



PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22E. STATE
DNA DATABASE

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22E, § 8 (2001)
§ 8. Establishment of Rules Governing Testing and Analysis of
DNA Samples; Quality Assurance Program.

The director shall establish procedural rules governing the testing and analysis of
DNA samples and a quality assurance program, which shall include proficiency standards for laboratories and analysts responsible for performing DNA testing and analysis. Such procedural rules and quality assurance program shall be compatible with the procedural rules and quality assurance program utilized by the FBI and shall establish compatible laboratory techniques, laboratory equipment, supplies, computer software and acceptance criteria for DNA records in CODIS. The director may employ independent forensic laboratories to perform the DNA analysis required under section 3; provided, however, that such laboratories shall comply with the regulations established pursuant to this section and the procedural rules and quality assurance program established pursuant to this section. With respect to any independent forensic laboratory that performs or seeks to perform the DNA analysis required under section 3, the director may audit such laboratory for compliance with such regulations or procedures as may be adopted under this chapter and may revoke such laboratory's right to create and exchange DNA records on the ground that such laboratory has failed to comply with any regulations, procedures, rules or quality assurance programs established pursuant to this section.

HISTORY:
Added by 1997, 106, § 7, approved Sept 30, 1997, effective Dec 29, 1997

NOTES:

CODE OF MASSACHUSETTS REGULATIONS--
Testing and Analysis, Quality Assurance, Computerized Storage, Retrieval, and Dissemination for the State
DNA Database 515 CMR 2.00.

ANNOTATIONS--
Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.



PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22E. STATE
DNA DATABASE

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22E, § 9 (2001)
§ 9. Confidentiality of
DNA Records.

All
DNA records collected pursuant to this chapter shall be confidential and shall not be disclosed to any person or agency unless such disclosure shall be authorized by this chapter. DNA records shall not be stored in a criminal offender record information system operated by the criminal history systems board pursuant to sections 167 to 178, inclusive, of chapter 6.

HISTORY:
Added by 1997, 106, § 7, approved Sept 30, 1997, effective Dec 29, 1997

NOTES:

CODE OF MASSACHUSETTS REGULATIONS--
Testing and Analysis, Quality Assurance, Computerized Storage, Retrieval, and Dissemination for the State
DNA Database 515 CMR 2.00.

ANNOTATIONS--
Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.

CASE NOTES

While involuntary collection of blood sample from inmates, parolees, and probationers for purposes of
DNA database constitutes search and seizure, there is no unreasonable search and seizure because state's interest in preserving permanent identification record of convicted persons for resolving past and future crimes outweigh's minimal bodily intrusion involved in taking small amount of blood by pin prick. Landry v Attorney General (1999) 429 Mass 336, 709 NE2d 1085.



PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22E. STATE
DNA DATABASE

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22E, § 10 (2001)
§ 10. Furnishing of
DNA Records by Director.

(a) The director shall furnish records in his possession, including
DNA records and analysis, to police departments in cities and towns, to the department, to the department of correction, to a sheriff's department, to the parole board or to prosecuting officers within the commonwealth upon request in writing or electronically.

(b) The director shall make
DNA records available upon written or electronic request to: (1) local, state and federal criminal justice and law enforcement and prosecuting agencies, including forensic laboratories serving such agencies, for identification purposes in order to further official criminal investigations or prosecutions; provided, however, that any DNA sample obtained directly from a person not otherwise required to provide a DNA sample under this chapter and delivered to the director for comparison with DNA records in the state DNA database shall have been obtained pursuant to a warrant; (2) the FBI for storage and maintenance in CODIS; and (3) any person who has been identified and charged with a criminal offense as a result of a search of DNA records stored in the state DNA database; provided, however, that such access shall be limited to DNA information pertaining to such individual.

(c) The director shall make
DNA records available upon written or electronic request to meet such purposes or comply with such statutory obligations as may be required under federal law as a condition to obtaining federal grants or funding.

(d) The director may, in his discretion, make
DNA records available to authorized persons or organizations, upon written or electronic request, for the limited purpose of (1) advancing DNA analysis methods and supporting statistical interpretation of DNA analysis, including development of population databases; provided, however, that personal identifying information shall be removed from DNA records disclosed for such purposes; (2) assisting in the identification of human remains from mass disasters; (3) assisting the identification and recovery of missing persons; and (4) advancing other humanitarian purposes.

HISTORY:
Added by 1997, 106, § 7, approved Sept 30, 1997, effective Dec 29, 1997

NOTES:

CODE OF MASSACHUSETTS REGULATIONS--
Testing and Analysis, Quality Assurance, Computerized Storage, Retrieval, and Dissemination for the State
DNA Database 515 CMR 2.00.

ANNOTATIONS--
Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.

CASE NOTES

While involuntary collection of blood sample from inmates, parolees, and probationers for purposes of
DNA database constitutes search and seizure, there is no unreasonable search and seizure because state's interest in preserving permanent identification record of convicted persons for resolving past and future crimes outweigh's minimal bodily intrusion involved in taking small amount of blood by pin prick. Landry v Attorney General (1999) 429 Mass 336, 709 NE2d 1085.


PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22E. STATE
DNA DATABASE

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22E, § 11 (2001)
§ 11. Refusal to Submit
DNA Sample; Penalty.

Any person required to provide a
DNA sample pursuant to this chapter and who refuses to provide such DNA sample shall be subject to punishment by a fine of not more than $ 1,000 or imprisonment in a jail or house of correction for not more than six months or both.

HISTORY:
Added by 1997, 106, § 7, approved Sept 30, 1997, effective Dec 29, 1997

NOTES:

CODE OF MASSACHUSETTS REGULATIONS--
Testing and Analysis, Quality Assurance, Computerized Storage, Retrieval, and Dissemination for the State
DNA Database 515 CMR 2.00.

ANNOTATIONS--
Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.

CASE NOTES

While involuntary collection of blood sample from inmates, parolees, and probationers for purposes of
DNA database constitutes search and seizure, there is no unreasonable search and seizure because state's interest in preserving permanent identification record of convicted persons for resolving past and future crimes outweigh's minimal bodily intrusion involved in taking small amount of blood by pin prick. Landry v Attorney General (1999) 429 Mass 336, 709 NE2d 1085.

PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22E. STATE
DNA DATABASE

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22E, § 12 (2001)
§ 12. Unauthorized Disclosure of
DNA Records; Penalty.

Any person who, by virtue of employment or official position, has possession of, or access to, a
DNA sample or record or portion thereof contained in the state DNA database and who purposely discloses such record or portion thereof in any manner to any person or agency not authorized to receive such record or portion thereof shall be subject to punishment by a fine of not more than $ 1,000 or imprisonment in a jail or house of correction for not more than six months or both.

HISTORY:
Added by 1997, 106, § 7, approved Sept 30, 1997, effective Dec 29, 1997

NOTES:

CODE OF MASSACHUSETTS REGULATIONS--
Testing and Analysis, Quality Assurance, Computerized Storage, Retrieval, and Dissemination for the State
DNA Database 515 CMR 2.00.

ANNOTATIONS--
Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.


PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22E. STATE
DNA DATABASE

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22E, § 13 (2001)
§ 13. Unauthorized Acquisition of
DNA Records; Penalty.

Any person who, without proper authorization, willfully obtains a
DNA record or a portion thereof contained in the state DNA database shall be subject to punishment by a fine of not more than $ 1,000 or imprisonment in a jail or house of correction for not more than six months or both.

HISTORY:
Added by 1997, 106, § 7, approved Sept 30, 1997, effective Dec 29, 1997

NOTES:

CODE OF MASSACHUSETTS REGULATIONS--
Testing and Analysis, Quality Assurance, Computerized Storage, Retrieval, and Dissemination for the State
DNA Database 515 CMR 2.00.

ANNOTATIONS--
Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.



PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22E. STATE
DNA DATABASE

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22E, § 14 (2001)
§ 14. Tampering with
DNA Samples or Records; Penalty.

Any person who tampers with or attempts to tamper with a
DNA sample or DNA record with the intent to interfere with DNA analysis shall be subject to punishment by a fine of not more than $ 5,000 or imprisonment in the state prison for not more than five years or in a jail or house of correction for not more than two and a half years or both such fine and imprisonment.

HISTORY:
Added by 1997, 106, § 7, approved Sept 30, 1997, effective Dec 29, 1997

NOTES:

CODE OF MASSACHUSETTS REGULATIONS--
Testing and Analysis, Quality Assurance, Computerized Storage, Retrieval, and Dissemination for the State
DNA Database 515 CMR 2.00.

ANNOTATIONS--
Validity, construction, and operation of state
DNA database statutes. 76 ALR5th 239.

PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 22E. STATE
DNA DATABASE

GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY

Mass. Ann. Laws ch. 22E, § 15 (2001)
§ 15. Expungement of
DNA Record.

Any person whose
DNA record has been included in the state DNA database may apply to the superior court to have such record expunged on the grounds that the conviction or judicial determination that resulted in the inclusion of the person's DNA record in the state DNA database has been reversed and the case dismissed; provided, however, that one year shall have elapsed from the date the judgment reversing or dismissing the conviction became final or such person shall have obtained, in writing, authorization from the district attorney that no further prosecution is contemplated under the original offense for which such person was convicted or for which the original judicial determination was entered.

HISTORY:
Added by 1997, 106, § 7, approved Sept 30, 1997, effective Dec 29, 1997

NOTES:

CODE OF MASSACHUSETTS REGULATIONS--
Testing and Analysis, Quality Assurance, Computerized Storage, Retrieval, and Dissemination for the State
DNA Database 515 CMR 2.00.

CASE NOTES

While involuntary collection of blood sample from inmates, parolees, and probationers for purposes of
DNA database constitutes search and seizure, there is no unreasonable search and seizure because state's interest in preserving permanent identification record of convicted persons for resolving past and future crimes outweigh's minimal bodily intrusion involved in taking small amount of blood by pin prick. Landry v Attorney General (1999) 429 Mass 336, 709 NE2d 1085.


MICHIGAN

TITLE 4 STATE AFFAIRS
PART FIVE. PUBLIC SAFETY
CHAPTER 24. STATE POLICE AND PUBLIC SAFETY REGULATIONS GENERALLY
SEX OFFENDERS REGISTRATION ACT

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

MCL § 28.727 (2000)

MSA § 4.475(7)
§ 4.475(7). Registration form.


Sec. 7. (1) A registration under this act shall be made on a form provided by the department and shall be forwarded to the department in the format the department prescribes. A registration shall contain all of the following:
(a) The individual's name, social security number, date of birth, and address or expected address. An individual who is in a witness protection and relocation program is only required to use the name and identifying information reflecting his or her new identity in a registration under this act. The registration and compilation databases shall not contain any information identifying the individual's prior identity or locale. The department shall request each individual to provide his or her date of birth if it is not included in the registration, and that individual shall comply with the request within 10 days.
(b) A brief summary of the individual's convictions for listed offenses regardless of when the conviction occurred, including where the offense occurred and the original charge if the conviction was for a lesser offense.
(c) A complete physical description of the individual.
(d) The photograph required under section 5a.
(e) The individual's fingerprints if not already on file with the department. An individual required to be registered on September 1, 1999 shall have his or her fingerprints taken not later than September 12, 1999 if not already on file with the department. The department shall forward a copy of the individual's fingerprints to the federal bureau of investigation if not already on file with that bureau.
(2) A registration may contain the individual's blood type and whether a
DNA identification profile of the individual is available.
(3) The form used for registration or verification under this act shall contain a written statement that explains the duty of the individual being registered to provide notice of a change of address under section 5, the procedures for providing that notice, and the verification procedures under section 5a.
(4) The individual shall sign a registration, notice, and verification. However, the registration, notice, or verification shall be forwarded to the department regardless of whether the individual signs it.
(5) The officer, court, or an employee of the agency registering the individual or receiving or accepting a registration under section 4 shall sign the registration form.
(6) An individual shall not knowingly provide false or misleading information concerning a registration, notice, or verification.
(7) The department shall prescribe the form for a notification required under section 5 and the format for forwarding the notification to the department.
(8) The department shall promptly provide registration, notice, and verification information to the federal bureau of investigation and to local law enforcement agencies and agencies of other states requiring the information, as provided by law.

HISTORY: Act 295, 1994, p 1522; by § 11 eff October 1, 1995.

Pub Acts 1994, No. 295, § 7, by § 11 eff October 1, 1995 (see 1994 note below); amended by Pub Acts 1996, No. 494, by § 2 eff April 1, 1997.

Amended by Pub Acts 1999, No. 85, imd eff June 28, 1999, by enacting § 1 eff September 1, 1999.

Former Acts.
See "Former act" annotation at § 3.996(105), and repeal annotation at § 9.595.

NOTES:
Editor's notes:
Pub Acts 1994, No. 295, § 12, by § 11 eff October 1, 1995, provides:
"Sec. 12. This act shall not take effect unless all of the following bills of the 87th Legislature are enacted into law:
"(a) Senate Bill No. 193 [Pub Acts 1994, No. 286].
"(b) Senate Bill No. 194 [Pub Acts 1994, No. 287].
"(c) Senate Bill No. 400 [Pub Acts 1994, No. 294].
"(d) House Bill No. 4601 [Pub Acts 1994, No. 355]."Effect of amendment notes:
The 1996 amendment made changes in subsection (1), opening paragraph, and paragraph (a); redesignated former subsection (1), paragraph (d) and former subsection (2), as subsection (2), paragraphs (a) and (b); made changes in subsections (3)-(5); and inserted "and the format for forwarding the notification to the department" in subsection (7).
The 1999 amendment made substantial changes in subsection (1)(a); in subsection (1)(b), inserted "regardless of when the conviction occurred" after "offenses"; added subsections (1)(d) and (e); in subsection (2), deleted "following: (a) The" before "individual's", deleted subsection (2)(b); in subsection (3), inserted "or verification" after "registration", deleted "and" after "5" and added "and the verification procedures under section 5a."; in subsection (4), substituted "shall" for "may", "a" for "the", deleted "or" before "notice" and added "and verification. However, the registration. notice, or verification shall be forwarded to the department regardless of whether the individual signs it."; in subsection (6), deleted "or" before "notice" and added "or verification", and added subsection (8).Statutory references:
Sections 4, 5 and 5a, above referred to, are §§ 4.475(4), 4.475(5) and 4.475(5a).

Research references:
21A Am Jur 2d, Criminal Law § 1031
70A Am Jur 2d, Sodomy § 100

ALR notes:
Statutes or ordinances requiring persons previously convicted of crime to register with designated officials, 82 ALR2d 398.
State statutes or ordinances requiring persons previously convicted of crime to register with authorities, 36 ALR5th 161.

TITLE 4 STATE AFFAIRS
PART FIVE. PUBLIC SAFETY
CHAPTER 24. STATE POLICE AND PUBLIC SAFETY REGULATIONS GENERALLY
DNA IDENTIFICATION PROFILING SYSTEM ACT

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MSA prec § 4.484(1) (2000)
Preceding § 4.484(1)


An act to provide for a
DNA identification profiling system; to provide for the collection of samples from certain prisoners, convicted offenders, and juvenile offenders and the analysis of those samples; and to prescribe the powers and duties of certain state departments and county agencies.
(Amended by Pub Acts 1996, No. 508, imd eff January 9, 1997, by § 3 eff January 1, 1997 (see 1996 note below).)
(Amended by Pub Acts 1998, No. 522, imd eff January 12, 1999 (see 1998 note below).)

HISTORY: Act 250, 1990, p 1561; eff March 28, 1991.

Former Acts.
A former § 4.446 was repealed by Pub Acts 1945, No. 267, imd eff May 25, 1945 and contained a severing clause.

NOTES:
Editor's notes:
Pub Acts 1996, No. 508, § 4, imd eff January 9, 1997, by § 3 eff January 1, 1997, provides:
"Section 4. This amendatory act shall not take effect unless all of the following bills of the 88th Legislature are enacted into law:
"(a) House Bill No. 5913 [Pub Acts 1996, No. 509].
"(b) House Bill No. 5914 [Pub Acts 1996, No. 510]."
Pub Acts 1998, No. 522, enacting § 1, imd eff January 12, 1999, provides:
"Enacting section 1. This amendatory act does not take effect unless all of the following bills of the 89th Legislature are enacted into law:
"(a) Senate Bill No. 1183 [Pub Acts 1998, No. 516].
"(b) Senate Bill No. 1184 [Pub Acts 1998, No. 517].
"(c) Senate Bill No. 1185 [Pub Acts 1998, No. 518].
"(d) Senate Bill No. 1186 [Pub Acts 1998, No. 519].
"(e) Senate Bill No. 1187 [Pub Acts 1998, No. 478].
"(f) Senate Bill No. 1196 [Pub Acts 1998, No. 528].
"(g) Senate Bill No. 1197 [Pub Acts 1998, No. 529].

"Effect of amendment notes:
The 1996 amendment deleted "blood and saliva" before "samples"; added "and juvenile offenders"; and deleted "and blood, saliva, and tissue samples from other individuals."
The 1998 amendment added "and county agencies".


TITLE 4 STATE AFFAIRS
PART FIVE. PUBLIC SAFETY
CHAPTER 24. STATE POLICE AND PUBLIC SAFETY REGULATIONS GENERALLY
DNA IDENTIFICATION PROFILING SYSTEM ACT

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

MCL § 28.171 (2000)

MSA § 4.484(1)
§ 4.484(1). Short title.


Sec. 1. This act shall be known and may be cited as the "
DNA identification profiling system act".

HISTORY: Act 250, 1990, p 1561; eff March 28, 1991.

Pub Acts 1990, No. 250, § 1, eff March 29, 1991 (see 1994 note below).

Former Acts.
A former § 4.446 was repealed by Pub Acts 1945, No. 267, imd eff May 25, 1945 and contained a severing clause.

NOTES:
Editor's notes:
Pub Acts 1994, No. 166, §§ 3(1), 4, imd eff June 17, 1994, provide:
"Section 3. (1) Sections 1, 2, 3, 4, and 5 of Act No. 250 of the Public Acts of 1990, section 3 as amended by this amendatory act, shall take effect on the effective date of this amendatory act.
"Section 4. This amendatory act shall not take effect unless all of the following bills of the 87th Legislature are enacted into law:
"(a) Senate Bill No. 1002 [Pub Acts 1994, No. 165].
"(b) House Bill No. 5414 [Pub Acts 1994, No. 163].
"(c) House Bill No. 5415 [Pub Acts 1994, No. 164]."



TITLE 4 STATE AFFAIRS
PART FIVE. PUBLIC SAFETY
CHAPTER 24. STATE POLICE AND PUBLIC SAFETY REGULATIONS GENERALLY
DNA IDENTIFICATION PROFILING SYSTEM ACT

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

MCL § 28.172 (2000)

MSA § 4.484(2)
§ 4.484(2). Definitions.


Sec. 2. As used in this act:
(a) "Department" means the department of state police.
(b) "
DNA identification profile" means the results of the DNA identification profiling of a sample.
(c) "
DNA identification profiling" means a validated scientific method of analyzing components of deoxyribonucleic acid molecules in a sample to identify the pattern of the components' chemical structure that is unique to the individual.
(d) "Sample" means a portion of an individual's blood, saliva, or tissue collected from the individual.

HISTORY: Act 250, 1990, p 1561; eff March 28, 1991.

Pub Acts 1990, No. 250, § 2, eff March 28, 1991 (see 1994 note below); amended by Pub Acts 1996, No. 508, imd eff January 9, 1997, by § 3 eff January 1, 1997 (see 1996 note below).

Former Acts.
A former § 4.446 was repealed by Pub Acts 1945, No. 267, imd eff May 25, 1945 and contained a severing clause.

NOTES:
Editor's notes:
Pub Acts 1994, No. 166, §§ 3(1), 4, imd eff June 17, 1994, provide:
"Section 3. (1) Sections 1, 2, 3, 4, and 5 of Act No. 250 of the Public Acts of 1990, section 3 as amended by this amendatory act, shall take effect on the effective date of this amendatory act.
"Section 4. This amendatory act shall not take effect unless all of the following bills of the 87th Legislature are enacted into law:
"(a) Senate Bill No. 1002 [Pub Acts 1994, No. 165].
"(b) House Bill No. 5414 [Pub Acts 1994, No. 163].
"(c) House Bill No. 5415 [Pub Acts 1994, No. 164]."
Pub Acts 1996, No. 508, § 4, imd eff January 9, 1997, by § 3 eff January 1, 1997, provides:
"Section 4. This amendatory act shall not take effect unless all of the following bills of the 88th Legislature are enacted into law:
"(a) House Bill No. 5913 [Pub Acts 1996, No. 509].
"(b) House Bill No. 5914 [Pub Acts 1996, No. 510].

"Effect of amendment notes:
The 1996 amendment added subsections (a) and (d); and made changes to the remainder of the section.



TITLE 4 STATE AFFAIRS
PART FIVE. PUBLIC SAFETY
CHAPTER 24. STATE POLICE AND PUBLIC SAFETY REGULATIONS GENERALLY
DNA IDENTIFICATION PROFILING SYSTEM ACT

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MCL § 28.173 (2000)

MSA § 4.484(3)
§ 4.484(3). Rules.


Sec. 3. The department shall promulgate rules under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, to implement this act, including, but not limited to, rules governing all of the following:
(a) The method of collecting samples in a medically approved manner by qualified persons and the types and number of samples to be collected by the following:
(i) The department of corrections from certain prisoners under section 33d of 1953 PA 232, MCL 791.233d.
(ii) Law enforcement agencies from certain convicted offenders under section 520m of the Michigan penal code, 1931 PA 328, MCL 750.520m, or certain juveniles under section 18k of chapter XIIA of 1939 PA 288, MCL 712A.18k.
(iii) The family independence agency or a county juvenile agency, as applicable, from certain juveniles under section 7a of the youth rehabilitation services act, 1974 PA 150, MCL 803.307a, or section 5a of the juvenile facilities act, 1988 PA 73, MCL 803.225a. As used in this subparagraph, "county juvenile agency" means that term as defined in section 2 of the county juvenile agency act.
(b) Distributing blood specimen vials, mailing tubes, and labels and instructions for collecting samples.
(c) Storing and transmitting to the department the samples described in subdivision (a).
(d) The
DNA identification or genetic marker profiling of samples described in subdivision (a).
(e) The development, in cooperation with the federal bureau of investigation and other appropriate persons, of a system of filing, cataloging, retrieving, and comparing
DNA identification profiles and computerizing this system.
(f) Protecting the privacy interests of individuals whose samples are analyzed under this act.

HISTORY: Act 250, 1990, p 1561; eff March 28, 1991.

Pub Acts 1990, No. 250, § 3, eff March 28, 1991; amended by Pub Acts 1994, No. 166, imd eff June 17, 1994 (see 1994 note below); 1996, No. 508, imd eff January 9, 1997, by § 3 eff January 1, 1997 (see 1996 note below).

Amended by Pub Acts 1998, No. 522, imd eff January 12, 1999 (see 1998 note below).

Former Acts.
A former § 4.446 was repealed by Pub Acts 1945, No. 267, imd eff May 25, 1945 and contained a severing clause.

NOTES:
Editor's notes:
Pub Acts 1994, No. 166, §§ 3(1), 4, imd eff June 17, 1994, provide:
"Section 3. (1) Sections 1, 2, 3, 4, and 5 of Act No. 250 of the Public Acts of 1990, section 3 as amended by this amendatory act, shall take effect on the effective date of this amendatory act.
"Section 4. This amendatory act shall not take effect unless all of the following bills of the 87th Legislature are enacted into law:
"(a) Senate Bill No. 1002 [Pub Acts 1994, No. 165].
"(b) House Bill No. 5414 [Pub Acts 1994, No. 163].
"(c) House Bill No. 5415 [Pub Acts 1994, No. 164]."
Pub Acts 1996, No. 508, § 4, imd eff January 9, 1997, by § 3 eff January 1, 1997, provides:
"Section 4. This amendatory act shall not take effect unless all of the following bills of the 88th Legislature are enacted into law:
"(a) House Bill No. 5913 [Pub Acts 1996, No. 509].
"(b) House Bill No. 5914 [Pub Acts 1996, No. 510]."
Pub Acts 1998, No. 522, enacting § 1, imd eff January 12, 1999, provides:
"Enacting section 1. This amendatory act does not take effect unless all of the following bills of the 89th Legislature are enacted into law:
"(a) Senate Bill No. 1183 [Pub Acts 1998, No. 516].
"(b) Senate Bill No. 1184 [Pub Acts 1998, No. 517].
"(c) Senate Bill No. 1185 [Pub Acts 1998, No. 518].
"(d) Senate Bill No. 1186 [Pub Acts 1998, No. 519].
"(e) Senate Bill No. 1187 [Pub Acts 1998, No. 478].
"(f) Senate Bill No. 1196 [Pub Acts 1998, No. 528].
"(g) Senate Bill No. 1197 [Pub Acts 1998, No. 529].

"Effect of amendment notes:
The 1994 amendment in the first undesignated subsection, substituted "October 1, 1994" for "January 1, 1991".
The 1996 amendment added subparagraph (a)(iii); and made changes throughout the remainder of the section.
The 1998 amendment added material to subparagraph (a)(iii), and made changes to statutory references throughout.Statutory references:
Act No. 306 of 1969, above referred to, is§§ 3.560(101) et seq. ; section 33d of Act No. 232 of 1953 is § 28.2303(4); section 520m of Act No. 328 of 1931 is§ 28.788(13) ; section 18k of chapter XIIA of Act No. 288 of 1939 is§ 27.3178(598.18k) ; section 7a of Act No. 150 of 1974 is§ 25.399(57a) ; section 5a of Act No. 73 of 1988 is§ 25.399(225a) ; section 2 of the county juvenile agency act is§ 5.1198(2) .

Michigan Administrative Code references:
Michigan Administrative Code R 28.5051-28.5059



TITLE 4 STATE AFFAIRS
PART FIVE. PUBLIC SAFETY
CHAPTER 24. STATE POLICE AND PUBLIC SAFETY REGULATIONS GENERALLY
DNA IDENTIFICATION PROFILING SYSTEM ACT

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

MCL § 28.174 (2000)

MSA § 4.484(4)
§ 4.484(4). Development of identification profiling capability.


Sec. 4. The department of state police shall work with the federal bureau of investigation and other appropriate persons to develop the capability of conducting
DNA identification and genetic marker profiling at department of state police crime laboratories. For this purpose, the department shall acquire, adapt, or construct the appropriate facilities, acquire the necessary equipment and supplies, evaluate and select analytic techniques and validate the chosen techniques, and obtain training for department of state police personnel.

HISTORY: Act 250, 1990, p 1561; eff March 28, 1991.

Pub Acts 1990, No. 250, § 4, eff March 29, 1991 (see 1994 note below).

Former Acts.
A former § 4.446 was repealed by Pub Acts 1945, No. 267, imd eff May 25, 1945 and contained a severing clause.

NOTES:
Editor's notes:
Pub Acts 1994, No. 166, §§ 3(1), 4, imd eff June 17, 1994, provide:
"Section 3. (1) Sections 1, 2, 3, 4, and 5 of Act No. 250 of the Public Acts of 1990, section 3 as amended by this amendatory act, shall take effect on the effective date of this amendatory act."
"Section 4. This amendatory act shall not take effect unless all of the following bills of the 87th Legislature are enacted into law:
"(a) Senate Bill No. 1002 [Pub Acts 1994, No. 165].
"(b) House Bill No. 5414 [Pub Acts 1994, No. 163].
"(c) House Bill No. 5415 [Pub Acts 1994, No. 164]."


TITLE 4 STATE AFFAIRS
PART FIVE. PUBLIC SAFETY
CHAPTER 24. STATE POLICE AND PUBLIC SAFETY REGULATIONS GENERALLY
DNA IDENTIFICATION PROFILING SYSTEM ACT

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

MCL § 28.175 (2000)

MSA § 4.484(5)
§ 4.484(5) (Repealed)

HISTORY: Act 250, 1990, p 1561; eff March 28, 1991.

Pub Acts 1990, No. 250, § 5, imd eff June 17, 1994; repealed by Pub Acts 1996, No. 508, imd eff January 9, 1997, by § 3 eff January 1, 1997 (see 1996 note below).

Former Acts.
A former § 4.446 was repealed by Pub Acts 1945, No. 267, imd eff May 25, 1945 and contained a severing clause.

NOTES:
Editor's notes:
Former § 4.484(5) pertained to appointment, composition, and duties of
DNA advisory committee.
Pub Acts 1996, No. 508, § 4, imd eff January 9, 1997, by § 3 eff January 1, 1997, provides:
"Section 4. This amendatory act shall not take effect unless all of the following bills of the 88th Legislature are enacted into law:
"(a) House Bill No. 5913 [Pub Acts 1996, No. 509].
"(b) House Bill No. 5914 [Pub Acts 1996, No. 510]."


TITLE 4 STATE AFFAIRS
PART FIVE. PUBLIC SAFETY
CHAPTER 24. STATE POLICE AND PUBLIC SAFETY REGULATIONS GENERALLY
DNA IDENTIFICATION PROFILING SYSTEM ACT

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

MCL § 28.176 (2000)

MSA § 4.484(6)
§ 4.484(6).
DNA identification profile; retention; disposal.


Sec. 6. (1) The department shall permanently retain a
DNA identification profile of an individual obtained from a sample in the manner prescribed by the department under this act if that individual is convicted of or found responsible for a violation of section 91, 316, or 317 of the Michigan penal code, 1931 PA 328, MCL 750.91, 750.316, and 750.317, or a violation or attempted violation of section 349, 520b, 520c, 520d, 520e, or 520g of the Michigan penal code, 1931 PA 328, MCL 750.349, 750.520b, 750.520c, 750.520d, 750.520e, and 750.520g. Any other DNA identification profile obtained by the department shall not be permanently retained by the department but shall be retained only as long as it is needed for a criminal investigation or criminal prosecution.
(2) If the state police forensic laboratory determines after analysis that a sample has been submitted by an individual who has been eliminated as a suspect in a crime, the laboratory shall dispose of the sample and the
DNA identification profile record in the following manner:
(a) The laboratory shall dispose of the sample in compliance with section 13811 of the public health code, 1978 PA 368, MCL 333.13811.
(b) The laboratory shall dispose of the sample and the
DNA identification profile record in the presence of a witness.
(3) After disposal in accordance with subsection (2), the laboratory shall make and keep a written record of the disposal, signed by the individual who witnessed the disposal.

HISTORY: Act 250, 1990, p 1561; eff March 28, 1991.

Amended by Pub Acts 2000, No. 30, imd eff March 15, 2000.

Former Acts.
A former § 4.446 was repealed by Pub Acts 1945, No. 267, imd eff May 25, 1945 and contained a severing clause.

NOTES:
Effect of amendment notes:
The 2000 amendment added subsection (2) and (3) and made stylistic changes in the statutory references.Statutory references:
Sections 91, 316, 317, 349, 520b, 520c, 520d, 520e and 520g of Act No. 328 of 1931, above referred to, are §§ 28.286, 28.548, 28.549, 28.788(2),28.788(3) , 28.788(4), 28.788(5) and 28.788(7); section 13811 of Act No. 368 of 1978 is § 14.15(13811).



TITLE 4 STATE AFFAIRS
PART FIVE. PUBLIC SAFETY
CHAPTER 24. STATE POLICE AND PUBLIC SAFETY REGULATIONS GENERALLY
THE FORENSIC LABORATORY FUNDING ACT

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MCL § 12.207 (2000)

MSA § 4.486(7)
§ 4.486(7). Expenses incurred by municipality; application for reimbursement; reports; number of investigations; distribution and proceeds to municipality; determination of amount; appropriation and use of money.


Sec. 7. (1) A municipality that maintains a forensic laboratory and that incurred expenses for a forensic test by that laboratory may apply for reimbursement of those expenses on a form provided by the department of treasury.
(2) A municipality applying under subsection (1) shall report to the department of treasury the number of criminal investigations in the preceding year for which the municipality's forensic laboratory performed 1 or more forensic tests. The department of state police shall report to the department of treasury in the manner prescribed by that department the number of criminal investigations in the preceding year for which the department of state police performed 1 or more forensic tests, whether the investigation was conducted by the department of state police or by the law enforcement agency of a municipality. The department of state police shall also report the number of
DNA identification profilings performed pursuant to the DNA identification profiling system act, Act No. 250 of the Public Acts of 1990, being sections 28.171 to 28.178 of the Michigan Compiled Laws.
(3) The number of investigations reported pursuant to subsection (2) shall exclude any investigation reported in a previous year.
(4) The department of treasury shall distribute proceeds of the state forensic laboratory fund annually to a municipality applying under this section in an amount determined by multiplying the total amount received in the fund for that period by a fraction, the numerator of which is the total of investigations reported pursuant to subsection (2) by that municipality for that period and the denominator of which is the total of investigations and
DNA identification profilings reported pursuant to subsection (2) for that period. The balance of the total amount received in the fund for that period after distributions to municipalities shall be credited to the department of state police.
(5) The legislature shall appropriate money in the state forensic laboratory fund credited to the department of state police to that department exclusively for forensic science services. The use of money appropriated pursuant to this section may include, but is not limited to, any of the following:
(a) Costs incurred in providing forensic tests in connection with criminal investigations conducted within this state.
(b) Purchasing or maintaining equipment used in performing forensic tests.
(c) Providing for the continuing education, training, and professional development of regularly employed laboratory personnel.
(d) Payment of expenses for implementing and performing procedures for
DNA identification profiling under the DNA identification profiling system act, Act No. 250 of the Public Acts of 1990.
(6) Money appropriated from the state forensic laboratory fund to the division of the department of state police concerned with forensic sciences shall be in addition to any allocations made pursuant to existing law and is intended to enhance appropriations from the general fund and not to replace or supplant those appropriations.
(7) Funds credited to the department of state police pursuant to this act for the fiscal year ending September 30, 1994 are appropriated to the department of state police for the purposes described in subsection (5).

HISTORY: Act 35, 1994, p 117; imd eff March 7, 1994.

Pub Acts 1994, No. 35, § 7, imd eff March 7, 1994, by § 11 eff June 6, 1994.

Former Acts.
A former § 4.446 was repealed by Pub Acts 1945, No. 267, imd eff May 25, 1945 and contained a severing clause.

NOTES:
Statutory references:
Act No. 250 of 1990, above referred to, is §§ 4.484(1) et seq.



TITLE 4 STATE AFFAIRS
PART FIVE. PUBLIC SAFETY
CHAPTER 24. STATE POLICE AND PUBLIC SAFETY REGULATIONS GENERALLY
DNA IDENTIFICATION PROFILING SYSTEM ACT

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

MCL § 28.176 (2000)

MSA § 4.484(6)
§ 4.484(6).
DNA identification profile; retention; disposal.


Sec. 6. (1) The department shall permanently retain a
DNA identification profile of an individual obtained from a sample in the manner prescribed by the department under this act if that individual is convicted of or found responsible for a violation of section 91, 316, or 317 of the Michigan penal code, 1931 PA 328, MCL 750.91, 750.316, and 750.317, or a violation or attempted violation of section 349, 520b, 520c, 520d, 520e, or 520g of the Michigan penal code, 1931 PA 328, MCL 750.349, 750.520b, 750.520c, 750.520d, 750.520e, and 750.520g. Any other DNA identification profile obtained by the department shall not be permanently retained by the department but shall be retained only as long as it is needed for a criminal investigation or criminal prosecution.
(2) If the state police forensic laboratory determines after analysis that a sample has been submitted by an individual who has been eliminated as a suspect in a crime, the laboratory shall dispose of the sample and the
DNA identification profile record in the following manner:
(a) The laboratory shall dispose of the sample in compliance with section 13811 of the public health code, 1978 PA 368, MCL 333.13811.
(b) The laboratory shall dispose of the sample and the
DNA identification profile record in the presence of a witness.
(3) After disposal in accordance with subsection (2), the laboratory shall make and keep a written record of the disposal, signed by the individual who witnessed the disposal.

HISTORY: Act 250, 1990, p 1561; eff March 28, 1991.

Amended by Pub Acts 2000, No. 30, imd eff March 15, 2000.

Former Acts.
A former § 4.446 was repealed by Pub Acts 1945, No. 267, imd eff May 25, 1945 and contained a severing clause.

NOTES:
Effect of amendment notes:
The 2000 amendment added subsection (2) and (3) and made stylistic changes in the statutory references.Statutory references:
Sections 91, 316, 317, 349, 520b, 520c, 520d, 520e and 520g of Act No. 328 of 1931, above referred to, are §§ 28.286, 28.548, 28.549, 28.788(2),28.788(3) , 28.788(4), 28.788(5) and 28.788(7); section 13811 of Act No. 368 of 1978 is § 14.15(13811).


TITLE 4 STATE AFFAIRS
PART FIVE. PUBLIC SAFETY
CHAPTER 24. STATE POLICE AND PUBLIC SAFETY REGULATIONS GENERALLY
DNA IDENTIFICATION PROFILING SYSTEM ACT

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

MCL § 28.177, 28.178 (2000)

MSA § 4.484(7)
§ 4.484(7), 4.484(8) (Repealed)

HISTORY: Act 250, 1990, p 1561; eff March 28, 1991.

Pub Acts 1990, No. 250, §§ 7, 8, eff March 29, 1991; repealed by Pub Acts 1994, No. 166, imd eff June 17, 1994 (see 1994 note below).

Former Acts.
A former § 4.446 was repealed by Pub Acts 1945, No. 267, imd eff May 25, 1945 and contained a severing clause.

NOTES:
Editor's notes:
Former §§ 4.484(7) and 4.484(8) pertained to conditions that had to be fulfilled in order for Pub Acts 1990, No. 250, the
DNA Identification Profiling System Act, to become effective.
Pub Acts 1994, No. 166, § 4, imd eff June 17, 1994, provides:
"Section 4. This amendatory act shall not take effect unless all of the following bills of the 87th Legislature are enacted into law:
"(a) Senate Bill No. 1002 [which became Pub Acts 1994, No. 165].
"(b) House Bill No. 5414 [which became Pub Acts 1994, No. 163].
"(c) House Bill No. 5415 [which became Pub Acts 1994, No. 164]."



TITLE 4 STATE AFFAIRS
PART FIVE. PUBLIC SAFETY
CHAPTER 24. STATE POLICE AND PUBLIC SAFETY REGULATIONS GENERALLY
DNA IDENTIFICATION PROFILING SYSTEM ACT

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

MCL § 28.501-28.506 (2000)

MSA § 4.485(1)
§ 4.485(1)-4.485(6) (Repealed)

HISTORY: Act 250, 1990, p 1561; eff March 28, 1991.

(Repealed by Pub Acts 1976, No. 7, imd eff February 11. For current provision as to furnishing of quarters and board, see § 4.437(2).)

Former Acts.
A former § 4.446 was repealed by Pub Acts 1945, No. 267, imd eff May 25, 1945 and contained a severing clause.


TITLE 4 STATE AFFAIRS
PART FIVE. PUBLIC SAFETY
CHAPTER 24. STATE POLICE AND PUBLIC SAFETY REGULATIONS GENERALLY
THE FORENSIC LABORATORY FUNDING ACT

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

MCL § 12.207 (2000)

MSA § 4.486(7)
§ 4.486(7). Expenses incurred by municipality; application for reimbursement; reports; number of investigations; distribution and proceeds to municipality; determination of amount; appropriation and use of money.


Sec. 7. (1) A municipality that maintains a forensic laboratory and that incurred expenses for a forensic test by that laboratory may apply for reimbursement of those expenses on a form provided by the department of treasury.
(2) A municipality applying under subsection (1) shall report to the department of treasury the number of criminal investigations in the preceding year for which the municipality's forensic laboratory performed 1 or more forensic tests. The department of state police shall report to the department of treasury in the manner prescribed by that department the number of criminal investigations in the preceding year for which the department of state police performed 1 or more forensic tests, whether the investigation was conducted by the department of state police or by the law enforcement agency of a municipality. The department of state police shall also report the number of
DNA identification profilings performed pursuant to the DNA identification profiling system act, Act No. 250 of the Public Acts of 1990, being sections 28.171 to 28.178 of the Michigan Compiled Laws.
(3) The number of investigations reported pursuant to subsection (2) shall exclude any investigation reported in a previous year.
(4) The department of treasury shall distribute proceeds of the state forensic laboratory fund annually to a municipality applying under this section in an amount determined by multiplying the total amount received in the fund for that period by a fraction, the numerator of which is the total of investigations reported pursuant to subsection (2) by that municipality for that period and the denominator of which is the total of investigations and
DNA identification profilings reported pursuant to subsection (2) for that period. The balance of the total amount received in the fund for that period after distributions to municipalities shall be credited to the department of state police.
(5) The legislature shall appropriate money in the state forensic laboratory fund credited to the department of state police to that department exclusively for forensic science services. The use of money appropriated pursuant to this section may include, but is not limited to, any of the following:
(a) Costs incurred in providing forensic tests in connection with criminal investigations conducted within this state.
(b) Purchasing or maintaining equipment used in performing forensic tests.
(c) Providing for the continuing education, training, and professional development of regularly employed laboratory personnel.
(d) Payment of expenses for implementing and performing procedures for
DNA identification profiling under the DNA identification profiling system act, Act No. 250 of the Public Acts of 1990.
(6) Money appropriated from the state forensic laboratory fund to the division of the department of state police concerned with forensic sciences shall be in addition to any allocations made pursuant to existing law and is intended to enhance appropriations from the general fund and not to replace or supplant those appropriations.
(7) Funds credited to the department of state police pursuant to this act for the fiscal year ending September 30, 1994 are appropriated to the department of state police for the purposes described in subsection (5).

HISTORY: Act 35, 1994, p 117; imd eff March 7, 1994.

Pub Acts 1994, No. 35, § 7, imd eff March 7, 1994, by § 11 eff June 6, 1994.

Former Acts.
A former § 4.446 w