ALABAMA

ALABAMA

*** 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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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

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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

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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

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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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]

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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:
[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 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:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]

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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:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]

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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.

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

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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

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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

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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 2. Criminal Procedure
TITLE 3. Additional Provisions Regarding Criminal Procedure
CHAPTER 2. Time of Commencing Criminal Actions

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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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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

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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

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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

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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

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

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 par