Enacted 06/24/14
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
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 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 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
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 which
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 which 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 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 which 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 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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LC003148/SUB B
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