2014 -- S 2101 SUBSTITUTE B

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LC003148/SUB B

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO CRIMINAL PROCEDURE -- DNA DETECTION OF SEXUAL AND

VIOLENT OFFENDERS

     Introduced By: Senators Bates, Walaska, Hodgson, Sosnowski, and Ottiano

     Date Introduced: January 21, 2014

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     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

12-1.5-17 of the General Laws in Chapter 12-1.5 entitled "DNA Detection of Sexual and Violent

Offenders" are hereby amended to read as follows:

     12-1.5-1. Policy. [Contingent amendment; see other version] -- The general assembly

finds and declares that DNA databanks and DNA databases are important tools in criminal

investigations, in the exclusion of individuals who are the subject of criminal investigations or

prosecutions, and in deterring and detecting recidivism. Many states have enacted laws requiring

persons arrested for, or convicted of, a crime of violence, or persons convicted of any felony,

sexual and violent offenses to provide genetic samples for DNA profiling. Moreover, it is the

policy of this state to assist federal, state, and local criminal justice and law enforcement agencies

in the identification and detection of individuals in criminal investigations. It is therefore in the

best interest of the state to establish a DNA databank and a DNA database containing DNA

samples and DNA records of individuals arrested for any crime of violence as defined in § 12-

1.5-2, or convicted of certain sexual and violent offenses, or convicted of any felony as defined in

the general laws of Rhode Island, and missing persons.

     12-1.5-1. Policy. [Contingent effective date; see note.] -- The general assembly finds

and declares that DNA databanks and DNA databases are important tools in criminal

investigations, in the exclusion of individuals who are the subject of criminal investigations or

prosecutions, and in deterring and detecting recidivism. Many states have enacted laws requiring

persons arrested for, or convicted of, a crime of violence as defined in § 12-1.5-2 sexual and

violent offenses to provide genetic samples for DNA profiling. Moreover, it is the policy of this

state to assist federal, state, and local criminal justice and law enforcement agencies in the

identification and detection of individuals in criminal investigations. It is in the best interest of the

state to establish a DNA databank and a DNA database containing DNA samples and DNA

records of individuals arrested for any crime of violence as defined in § 12-1.5-2 or convicted of a

crime of violence as defined in section §11-47-2, or convicted of any felony as defined in the

general laws of Rhode Island, and missing persons.

     12-1.5-2. Definitions. -- For the purposes of this chapter:

      (1) "CODIS" is derived from combined DNA index system, the Federal Bureau of

Investigation's national DNA identification index system that allows the storage and exchange of

DNA records submitted by state and local forensic DNA laboratories;

      (2) "DNA" means deooxyribonucleic acid, which is located in the cells of the body and

provides an individual's personal genetic blueprint. DNA encodes genetic information that is the

basis of human hereditary and forensic identification;

      (3) "DNA record" means DNA identification information only, which is stored in the

state DNA database or the combined DNA index system for the purpose of generating

investigative leads or supporting statistical interpretation of DNA test results. The DNA record is

the result obtained from the DNA typing tests. The DNA record is comprised of the

characteristics of a DNA sample which that are of value only in establishing the identity of

individuals. The DNA record, however, does not include the DNA sample, and the DNA record

may never include the results of tests of any structural genes. The results of all DNA

identification tests on an individual's DNA sample are also collectively referred to as the DNA

profile of an individual;

      (4) "DNA sample" means a blood or tissue sample provided by any person with respect

to offenses covered by this chapter, or submitted to the department of health laboratory pursuant

to this chapter for DNA analysis or storage, or both;

      (5) "F.B.I." means the Federal Bureau of Investigation;

      (6) "State DNA databank" means the repository of DNA samples collected under this

chapter, which that is administered by the department of health; and

      (7) "State DNA database" means the state-level DNA identification record system to

support law enforcement which that is administered by the department of health and which that

provides DNA records to the F.B.I. for storage and maintenance in CODIS. It is the collective

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capability to store and maintain DNA records related to forensic casework, the DNA records of

those arrested for crimes of violence as defined in § 12-1.5-2 and/or convicted offenders required

to provide a DNA sample under state law, and anonymous DNA records used for research,

quality control, and other DNA analysis support systems.

     (8) "Crimes of violence" include murder, manslaughter, first-degree arson, kidnapping

with intent to extort, robbery, larceny from the person, first-degree sexual assault, second-degree

sexual assault, first-and-second degree child molestation, assault with intent to murder, assault

with intent to rob, assault with intent to commit first-degree sexual assault, burglary, and entering

a dwelling house with intent to commit murder, robbery, sexual assault, or larceny.

     12-1.5-4. State DNA database. -- There is established the state DNA database. It shall be

administered by the department of health and provide DNA records for the F.B.I. for storage and

maintenance by CODIS. The state DNA database shall have the capability provided by computer

software and procedures administered by the department of health to store and maintain DNA

records related to:

      (1) Forensic casework, including the identification of missing persons;

      (2) Individuals arrested for any crime of violence as defined in § 12-1.5-2 and convicted

Convicted felony offenders required to provide a DNA sample under this chapter; and

      (3) Anonymous DNA records used for research on identification technologies or quality

control.

     12-1.5-7. Scope and applicability. [Contingent amendment; see other version] -- For

law enforcement purposes, this chapter is applicable to adult persons arrested for crimes of

violence as defined in § 12-1.5-2 and/or convicted to a period of probation for any of the

following offenses: sections 11-37-2, 11-37-4, 11-37-8, 11-37-8.1, 11-37-8.3, 11-23-1 and 11-23-

3, and for of any felony as defined in the general laws of Rhode Island in this chapter.

     12-1.5-7. Scope and applicability. [Contingent effective date; see note.] -- For law

enforcement purposes, this chapter is applicable to adult persons arrested for any crime of

violence as defined in § 12-1.5-2 and/or convicted of, or sentenced to a period of probation for

any of the following offenses: sections 11-37-2, 11-37-4, 11-37-8, 11-37-8.1, 11-37-8.3, 11-23-1,

and 11-23-3, for any crime of violence as defined in section 11-47-2 for offenses committed after

July 1, 2001, and for any felony as defined in the general laws of Rhode Island for, any felony.

     12-1.5-8. DNA sample required upon convictionDNA sample required upon arrest

or conviction for any crime of violence. -- (a) Every person arrested for a crime of violence as

defined in § 12-1.5-2, who pleads guilty or nolo contendere, or is convicted of an offense as listed

in section 12-1.5-7 after June 29, 1998, any felony shall have a DNA sample taken for analysis as

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follows:

      (1) Every person who is sentenced to a term of confinement to prison, for an offense as

listed in section 12-1.5-7 any crime of violence as defined in § 12-1.5-2, or any felony shall not

be released prior to the expiration of his or her maximum term of confinement unless and until a

DNA sample has been taken;

      (2) Every person convicted of an offense or sentenced to probation as listed in section

12-1.5-7 any crime of violence as defined in § 12-1.5-2, or any felony, or who is sentenced

thereon to any term of probation, or whose case is referred to a diversion program, or upon whose

case sentencing is deferred shall have a DNA sample taken for analysis by the department of the

health as a condition for of any sentence which disposition will not involve an intake into prison.

     (b) Every person arrested for any crime of violence as defined in § 12-1.5-2 shall, at the

time of booking, have a DNA sample taken for analysis and included in the Rhode Island DNA

database and DNA databank respectively as required by this chapter and every such person shall

be notified of his or her expungement rights under § 12-1.5-13 at or near the time the DNA

sample is taken.

     (1) The DNA sample shall be submitted by the arresting authority to the department of

health. The department of health shall not test or place the sample in the statewide DNA database

prior to arraignment unless one of the following conditions has been met:

     (i) The arrestee appeared before any judicial officer for an arraignment and the judicial

officer made a finding that there was probable cause for the arrest; or

     (ii) The defendant was released and then failed to appear for the initial hearing, or

escaped custody prior to appearing before a judicial officer.

     (2) If all qualifying criminal charges are determined to be unsupported by probable cause:

     (i) The DNA sample shall be immediately destroyed; and

     (ii) Notice shall be sent by the prosecuting authority to the defendant and counsel of

record for the defendant that the sample was destroyed.

     (3) The arrestee requests or consents to having their DNA sample processed prior to

arraignment for the sole purpose of having the sample checked against a sample that has been

processed from the crime scene or the hospital, and is related to the charges against the person.

     (4) A second DNA sample shall be taken if needed to obtain sufficient DNA for the

statewide DNA database system or if ordered by the court for good cause shown.

      (c)(b) All DNA samples taken pursuant to this section shall be taken in accordance with

regulations promulgated by the department of health.

     (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

database contains DNA profiles that should not be in the database, including the steps necessary

to expunge any profiles that the department determines should not be in the database.

     (e) The requirements of this chapter are mandatory. In the event that an arrestee’s DNA

sample is not adequate for any reason, the arrestee shall provide another DNA sample for

analysis.

     (f) A sample does not need to be collected if the person has previously provided a sample

sufficient for DNA testing pursuant to the provisions of this section.

     12-1.5-13. Expungement. -- (a) A person whose DNA record or profile has been

included in the databank pursuant to this act may request expungement, on the grounds that the

conviction on which authority for including that person's DNA record or profile was based, has

been reversed. The department of health shall purge all records and identifiable information in the

database pertaining to the person and destroy all samples from the person upon receipt of a

written request for expungement pursuant to this section and a certified copy of the final court

order reversing the conviction. The department of health shall purge and destroy all records and

identifiable information in its database and all DNA samples taken pursuant to this chapter from

convicted persons upon official proof that the person has been deceased for a period of at least

three (3) years. Official proof shall include, but not be limited to, a certified copy of a death

certificate.

     (b) If the offense for which a DNA sample has been taken pursuant to § 12-1.5-8(b) does

not result in a charge through information or indictment; or leads to voluntary dismissal of the

charge by the state, or dismissal by a court; or by a not guilty verdict after trial; or upon the

vacating or the reversal of a conviction in which the state does not retry the defendant or appeal

the decision; or loses such appeal upon hearing; or upon any plea or conviction of a lesser offense

that would not give rise to the mandatory sampling of the individual's DNA; the record or profile

shall be expunged from the state DNA identification database, regardless of any prior record for

which DNA sampling would not have been authorized, except pursuant to subsection (e) herein.

     (1) The prosecuting authority shall, within thirty (30) days of an event listed in this

subsection, notify the department of health of such event for purposes of expunging the person's

DNA record and any samples, analyses, or other documents relating to the DNA testing of such

individual in connection with the investigation, arrest, and/or prosecution of the crime that

resulted in the arrest of the person. The department shall, within thirty (30) days of receiving such

notification, destroy and expunge the person's DNA record and any samples, analyses, or other

documents relating to the DNA testing of such individual and shall notify the individual of such

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action.

     (c) Upon receipt of a written request for expungement from the person whose DNA

record or profile has been included in the database pursuant to this chapter and notification of the

completion of a program of diversion or the completion of the term of a sentence of deferment, or

of the granting of a pardon, the record or profile shall be expunged from the state DNA

identification database, regardless of any prior record for which DNA sampling would not have

been authorized, except pursuant to subsection (e) herein, and such individual may apply to the

court for an order directing the expungement of their DNA record and any samples, analyses, or

other documents relating to the DNA testing of such individual in connection with the

investigation, arrest, and/or prosecution of the crime that resulted in the arrest of the person.

     (d) A copy of the expungement motion shall be served on the attorney general and the

arresting police department with ten (10) days' notice prior to hearing, and an order directing

expungement shall be granted if the court finds any of the appropriate conditions of the prior

subsection are satisfied.

     (e) The department of health shall, by rule or regulation, prescribe procedures to ensure

that the DNA record in the state DNA identification database, and any samples, analyses, or other

documents relating to such record, whether in the possession of the division, or any law

enforcement or police agency, or any forensic DNA laboratory, including any duplicates or

copies thereof are destroyed, including any records from CODIS. The director of health shall also

adopt, by rule and regulation, a procedure for the expungement in other appropriate

circumstances of DNA records contained in the database.

     (f) No expungement shall be granted where an individual has a prior conviction requiring

a DNA sample, or a pending charge for which collection of a sample was authorized pursuant to

the provisions of this chapter.

     (g) The detention, arrest, or conviction of a person based upon a database match or

database information is not invalidated if it is determined that the sample was obtained or placed

in the database by mistake. Any identification, warrant, or probable cause to arrest based upon a

database match is not invalidated due to a failure to expunge or a delay in expunging records.

     (h) At the time of collection of the DNA sample upon arrest of any crime of violence as

defined in § 12-1.5-2, the individual from whom a sample is collected shall be given written

notice that the DNA record may be expunged and the DNA sample destroyed in accordance with

this section. In addition, the department of health, the office of the attorney general, and the office

of the public defender shall post on their websites the expungement provisions of this section.

     12-1.5-17. Convicted persons -- Refusal to give DNA sampleBailed and convicted

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persons – Refusal to give DNA sample. -- Any person who is required to have a DNA sample

taken after having been arrested and charged with any crime of violence as defined in § 12-1.5-2

or convicted of any felony, who refuses to do so, and who knowingly, violently resists the taking

of a DNA sample duly authorized by medical personnel, shall be in violation of the terms of his

or her release, regardless of whether or not the term was a special condition of his or her bail,

release on probation, parole, or home confinement, or other form of supervised release.

     SECTION 2. This act shall take effect on July 1, 2015.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO CRIMINAL PROCEDURE -- DNA DETECTION OF SEXUAL AND

VIOLENT OFFENDERS

***

     This act would require the collection of DNA samples for any person arrested for a crime

of violence as defined in this act or convicted of any felony. This act would expand the list of

crimes for which a DNA sample is required. The samples would be included in the Rhode Island

DNA database to be administered by the FBI’s national DNA identification index system, which

allows for the storage and exchange of DNA records submitted by state and local forensic DNA

laboratories for the identification and/or exclusion of individuals who are the subject of criminal

investigations or prosecutions.

     This act would take effect on July 1, 2015.

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