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2012 -- S 2061 | |
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LC00304 | |
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STATE OF RHODE ISLAND | |
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IN GENERAL ASSEMBLY | |
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JANUARY SESSION, A.D. 2012 | |
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A N A C T | |
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RELATING TO CRIMINAL PROCEDURE -- DNA DETECTION OF SEXUAL AND | |
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VIOLENT OFFENDERS | |
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Introduced By: Senators Bates, Walaska, Hodgson, McCaffrey, and Algiere | |
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Date Introduced: January 11, 2012 | |
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Referred To: Senate Judiciary | |
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It is enacted by the General Assembly as follows: | |
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SECTION 1. Sections 12-1.5-1, 12-1.5-2, 12-1.5-4, 12-1.5-7, 12-1.5-8, 12-1.5-13, and |
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12-1.5-17 of the General Laws in Chapter 12-1.5 entitled "DNA Detection of Sexual and Violent |
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Offenders" are hereby amended to read as follows: |
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12-1.5-1. Policy. [Contingent amendment; see other version] -- The general assembly |
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finds and declares that DNA databanks and DNA databases are important tools in criminal |
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investigations, in the exclusion of individuals who are the subject of criminal investigations or |
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prosecutions, and in deterring and detecting recidivism. Many states have enacted laws requiring |
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persons arrested for or convicted of a crime of violence, or convicted of any felony, |
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state to assist federal, state and local criminal justice and law enforcement agencies in the |
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identification and detection of individuals in criminal investigations. It is therefore in the best |
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interest of the state to establish a DNA databank and a DNA database containing DNA samples |
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and DNA records of individuals arrested for |
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defined in section 12-1.5-2, or convicted of any felony, and missing persons. |
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12-1.5-1. Policy. [Contingent effective date; see note.] -- The general assembly finds |
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and declares that DNA databanks and DNA databases are important tools in criminal |
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investigations, in the exclusion of individuals who are the subject of criminal investigations or |
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prosecutions, and in deterring and detecting recidivism. Many states have enacted laws requiring |
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persons arrested for or convicted of a crime of violence as defined in section 12-1.5-2 |
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state to assist federal, state, and local criminal justice and law enforcement agencies in the |
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identification and detection of individuals in criminal investigations. It is in the best interest of the |
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state to establish a DNA databank and a DNA database containing DNA samples and DNA |
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records of individuals arrested for a |
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as defined in section 12-1.5-2 or convicted of any felony, and missing persons. |
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12-1.5-2. Definitions. -- For the purposes of this chapter: |
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(1) "CODIS" is derived from combined DNA index system, the Federal Bureau of |
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Investigation's national DNA identification index system that allows the storage and exchange of |
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DNA records submitted by state and local forensic DNA laboratories; |
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(2) "DNA" means deooxyribonucleic acid, which is located in the cells of the body and |
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provides an individual's personal genetic blueprint. DNA encodes genetic information that is the |
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basis of human hereditary and forensic identification; |
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(3) "DNA record" means DNA identification information only, which is stored in the |
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state DNA database or the combined DNA index system for the purpose of generating |
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investigative leads or supporting statistical interpretation of DNA test results. The DNA record is |
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the result obtained from the DNA typing tests. The DNA record is comprised of the |
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characteristics of a DNA sample which are of value only in establishing the identity of |
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individuals. The DNA record, however, does not include the DNA sample, and the DNA record |
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may never include the results of tests of any structural genes. The results of all DNA |
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identification tests on an individual's DNA sample are also collectively referred to as the DNA |
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profile of an individual; |
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(4) "DNA sample" means a blood or tissue sample provided by any person with respect |
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to offenses covered by this chapter, or submitted to the department of health laboratory pursuant |
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to this chapter for DNA analysis or storage, or both; |
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(5) "F.B.I." means the Federal Bureau of Investigation; |
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(6) "State DNA databank" means the repository of DNA samples collected under this |
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chapter, which is administered by the department of health; and |
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(7) "State DNA database" means the state-level DNA identification record system to |
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support law enforcement which is administered by the department of health and which provides |
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DNA records to the F.B.I. for storage and maintenance in CODIS. It is the collective capability to |
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store and maintain DNA records related to forensic casework, the DNA records of those arrested |
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for crimes of violence as defined in section 12-1.5-2 and/or convicted offenders required to |
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provide a DNA sample under state law, and anonymous DNA records used for research, quality |
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control, and other DNA analysis support systems. |
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(8) "Crimes of violence" include murder, manslaughter, first degree arson, kidnapping |
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with intent to extort, robbery, larceny from the person, first degree sexual assault, second degree |
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sexual assault, first and second degree child molestation, assault with intent to murder, assault |
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with intent to rob, assault with intent to commit first degree sexual assault, burglary, and entering |
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a dwelling house with intent to commit murder, robbery, sexual assault, or larceny. |
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12-1.5-4. State DNA database. -- There is established the state DNA database. It shall be |
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administered by the department of health and provide DNA records for the F.B.I. for storage and |
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maintenance by CODIS. The state DNA database shall have the capability provided by computer |
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software and procedures administered by the department of health to store and maintain DNA |
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records related to: |
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(1) Forensic casework, including the identification of missing persons; |
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(2) Individuals arrested for any crime of violence as defined in section 12-1.5-2 and |
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convicted |
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(3) Anonymous DNA records used for research on identification technologies or quality |
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control. |
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12-1.5-7. Scope and applicability. [Contingent amendment; see other version] -- For |
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law enforcement purposes, this chapter is applicable to adult persons arrested for crimes of |
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violence as defined in section 12-1.5-2 and/or convicted |
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12-1.5-7. Scope and applicability. [Contingent effective date; see note.] -- For law |
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enforcement purposes, this chapter is applicable to adult persons arrested for any crime of |
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violence as defined in section 12-1.5-2 and/or convicted of or sentenced |
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felony. |
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12-1.5-8. |
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or conviction for any crime of violence. -- (a) Every person arrested for a crime of violence as |
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defined in section 12-1.5-2, who pleads guilty or nolo contendere, or is convicted of |
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analysis as follows: |
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(1) Every person who is sentenced to a term of confinement to prison, for |
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not be released prior to the expiration of his or her maximum term of confinement unless and |
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until a DNA sample has been taken; |
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(2) Every person convicted of |
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thereon to any term of probation, or whose case is referred to a diversion program or upon whose |
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case sentencing is deferred shall have a DNA sample taken for analysis by the department of the |
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health as a condition |
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(b) Every person arrested for any crime of violence as defined in section 12-1.5-2 shall, at |
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the time of booking, have a DNA sample taken for analysis and included in the Rhode Island |
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DNA database and DNA databank respectively as required by this chapter and every such person |
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shall be notified of his or her expungement rights under section 12-1.5-13 at or near the time the |
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DNA sample is taken. |
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(c) |
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regulations promulgated by the department of health. |
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(d) The director of the department of health shall promulgate rules and regulations |
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governing the periodic review of the DNA identification database to determine whether or not the |
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database contains DNA profiles that should not be in the database, including the steps necessary |
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to expunge any profiles which the department determines should not be in the database. |
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(e) The requirements of this chapter are mandatory. In the event that an arrestee’s DNA |
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sample is not adequate for any reason, the arrestee shall provide another DNA sample for |
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analysis. |
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(f) A sample dues does not need to be collected if the person has previously provided a |
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sample sufficient for DNA testing pursuant to the provisions of this section. |
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12-1.5-13. Expungement. -- (a) A person whose DNA record or profile has been |
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included in the databank pursuant to this act may request expungement, on the grounds that the |
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conviction on which authority for including that person's DNA record or profile was based, has |
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been reversed. The department of health shall purge all records and identifiable information in the |
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database pertaining to the person and destroy all samples from the person upon receipt of a |
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written request for expungement pursuant to this section and a certified copy of the final court |
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order reversing the conviction. The department of health shall purge and destroy all records and |
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identifiable information in its database and all DNA samples taken pursuant to this chapter from |
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convicted persons upon official proof that the person has been deceased for a period of at least |
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three (3) years. Official proof shall include, but not be limited to, a certified copy of a death |
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certificate. |
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(b) Upon receipt of a written request for expungement from the person whose DNA |
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record or profile has been included in the database pursuant to this chapter and notification of the |
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underlying case not being charged through information or indictment, or voluntary dismissal by |
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the state, or dismissal by a court, or by a not guilty verdict after trial, or upon the vacating or the |
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reversal of a conviction in which the state does not retry the defendant or appeal the decision, or |
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loses such appeal upon hearing, or upon any plea or conviction of a lesser offense that would not |
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give rise to the mandatory sampling of the individual’s DNA, or upon the completion of a |
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program of diversion or the completion of the term of a sentence of deferment, or of the granting |
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of a pardon, the record or profile shall be expunged from the state DNA identification database, |
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regardless of any prior record for which DNA sampling would not have been authorized, except |
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pursuant to subsection (e), herein and such individual may apply to the court for an order |
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directing the expungement of their DNA record and any samples, analyses, or other documents |
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relating to the DNA testing of such individual in connection with the investigation, arrest and/or |
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prosecution of the crime which resulted in the arrest of the person. |
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(c) A copy of the expungement motion shall be served on the attorney general and the |
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arresting police department with ten (10) days notice prior to hearing, and an order directing |
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expungement shall be granted if the court finds any of the appropriate conditions of subsection |
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(b) are satisfied; or in the case of a mistrial or dismissal of such charges by the court, that all |
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appeals relating to the charges have been concluded; that such individual will not be retried, or if |
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a retrial has occurred, the trier of fact has rendered a verdict of complete acquittal of the charges |
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that gave rise to the requirement to collect the DNA sample. |
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(d) The department of health shall, by rule or regulation, prescribe procedures to ensure |
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that the DNA record in the state DNA identification database, and any samples, analyses, or other |
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documents relating to such record, whether in the possession of the division, or any law |
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enforcement or police agency, or any forensic DNA laboratory, including any duplicates or |
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copies thereof are destroyed, including any records from CODIS. The director of health shall also |
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adopt by rule and regulation a procedure for the expungement in other appropriate circumstances |
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of DNA records contained in the database. |
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(e) No expungement shall be granted where an individual has a prior conviction requiring |
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a DNA sample, or a pending charge for which collection of a sample was authorized pursuant to |
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the provisions of this chapter. |
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(f) The detention, arrest, or conviction of a person based upon a database match or |
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database information is not invalidated if it is determined that the sample was obtained or placed |
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in the database by mistake. Any identification, warrant, or probable cause to arrest based upon a |
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database match is not invalidated due to a failure to expunge or a delay in expunging records. |
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12-1.5-17. |
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persons – Refusal to give DNA sample. -- Any person who is required to have a DNA sample |
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taken after having been arrested and charged with any crime of violence as defined in section 12- |
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1.5-2 or convicted of any felony, who refuses to do so, and who knowingly violently resists the |
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taking of a DNA sample duly authorized by medical personnel, shall be in violation of the terms |
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of his or her release, regardless of whether or not the term was a special condition of his or her |
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bail, release on probation, parole, or home confinement or other form of supervised release. |
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SECTION 2. Chapter 12-1.5 of the General Laws entitled "DNA Detection of Sexual and |
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Violent Offenders" is hereby amended by adding thereto the following section: |
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12-1.5-19. Limitation on liability. -- Persons authorized to collect DNA samples shall |
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not be civilly or criminally liable for the collection of a DNA sample pursuant to this chapter if |
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they perform these duties in good faith and in a reasonable manner according to generally |
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accepted medical or other professional practices. |
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SECTION 3. This act shall take effect on January 1, 2013. |
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LC00304 | |
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EXPLANATION | |
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BY THE LEGISLATIVE COUNCIL | |
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OF | |
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A N A C T | |
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RELATING TO CRIMINAL PROCEDURE -- DNA DETECTION OF SEXUAL AND | |
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VIOLENT OFFENDERS | |
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This act would require the collection of DNA samples for any person arrested for a crime |
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of violence as defined in this act or any felony. This act would expand the list of crimes for which |
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a DNA sample is required. The samples would be included in the Rhode Island DNA database to |
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be administered by the FBI’s national DNA identification index system, which allows for the |
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storage and exchange of DNA records submitted by state and local forensic DNA laboratories for |
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the identification and/or exclusion of individuals who are the subject of criminal investigations or |
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prosecutions. |
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This act would take effect on January 1, 2013. |
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LC00304 | |
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