Introduced By: Senators McDonald, Oster, Fogarty, Paiva-Weed and Enos
Date Introduced : January 27, 1998
It is enacted by the General Assembly as follows:
SECTION 1. Title 12 of the General Laws entitled "Criminal Procedure" is hereby amended by adding thereto the following chapter:
{ADD 12-1.5-1. Policy. -- ADD} {ADD 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 convicted of 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 convicted of certain sexual and violent offenses and missing persons. ADD}
{ADD 12-1.5-2. Definitions. -- ADD} {ADD For the purposes of this chapter: ADD}
{ADD (1) The term "CODIS" is derived from combining 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; ADD}
{ADD (2) The term "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; ADD}
{ADD (3) The term "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 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; ADD}
{ADD (4) The term "DNA sample" means a blood or tissue sample provided by any person with respect to offenses covered by this act or submitted to the department of health laboratory pursuant to this act for DNA analysis or storage, or both; ADD}
{ADD (5) The term "state DNA database" means the state-level DNA identification record system to support law enforcement which is administered by the department of health and which provides DNA records to the FBI 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 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; ADD}
{ADD (6) The term "state DNA databank" means the repository of DNA samples collected under this act, which is administered by the department of health; and ADD}
{ADD (7) The term "FBI" means the Federal Bureau of Investigation. ADD}
{ADD 12-1.5-3. Powers and duties of the department of health. -- ADD} {ADD In addition to any other powers and duties conferred by this chapter, the department of health shall: ADD}
{ADD (1) Be responsible for the policy management and administration of the state DNA database and state DNA databank; ADD}
{ADD (2) Promulgate rules and regulations, within one hundred and eighty (180) days of the passage of this act, to carry out the provisions of this act; and ADD}
{ADD (3) Provide for liaison with the FBI and other criminal justice agencies in regard to the state's participation in CODIS or in any DNA database designated by the department of health. ADD}
{ADD 12-1.5-4. State DNA database. -- ADD} {ADD There is hereby established the state DNA database. It shall be administered by the department of health and provide DNA records for the FBI 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: ADD}
{ADD (1) Forensic casework, including the identification of missing persons; ADD}
{ADD (2) Convicted offenders required to provide a DNA sample under this act; and ADD}
{ADD (3) Anonymous DNA records used for research on identification technologies or quality control. ADD}
{ADD 12-1.5-5. State DNA databank. -- ADD} {ADD There is hereby established the state DNA databank. It shall serve as the repository of DNA samples collected under this act and shall be administered by the department of health. ADD}
{ADD 12-1.5-6. Procedural compatibility with FBI. -- ADD} {ADD The DNA database system as established by this chapter shall be compatible with the procedures specified by the FBI, including use of comparable test procedures, laboratory equipment, supplied and computer software. ADD}
{ADD 12-1.5-7. Scope and applicability. -- ADD} {ADD For law enforcement purposes, this chapter is applicable to adult persons convicted or sentenced to a period of probation for any of the following offenses: 11-37-2, 11-37-4, 11-37-8, 11-37-8.1, 11-37-8.3, 11-23-1 and 11-23-3. ADD}
{ADD 12-1.5-8. DNA sample required upon conviction. -- ADD} {ADD (1) Conviction after effective date. Every person convicted of an offense as listed in section 12-1.5-7 after the effective date of this section shall have a DNA sample taken for analysis as follows: ADD}
{ADD (a) Every person who is sentenced to a term of confinement to prison, for an offense as listed in section 12-1.5-7 shall not be released prior to the expiration of his/her maximum term of confinement unless and until a DNA sample has been taken; ADD}
{ADD (b) Every person convicted of an offense or sentenced to probation as listed in section 12-1.5-7 shall have a DNA sample taken for analysis by the department of the health as a condition for any sentence which disposition will not involve an intake into prison. ADD}
{ADD (2) All DNA samples taken pursuant to this section shall be taken in accordance with regulations promulgated by the department of health. ADD}
{ADD 12-1.5-9. Procedures for withdrawal, collection and transmission of DNA samples. -- ADD} {ADD (1) Only those individuals qualified to withdraw DNA samples in a medically approved manner shall withdraw a DNA sample to be submitted for DNA analysis . ADD}
{ADD (2) Persons authorized to withdraw DNA samples under this section shall not be civilly or criminally liable for withdrawing a DNA sample and transmitting test results if they act in good faith and pursuant to this act. ADD}
{ADD (3) It shall be a complete defense to a civil or criminal action if the law enforcement and correction officials who physically restrain a person for the taking of a DNA sample, acted in good faith and under the instruction and supervision of medical personnel under this statute to withdraw DNA samples. ADD}
{ADD 12-1.5-10. Procedures for conduct, disposition and use of DNA analysis. -- ADD} {ADD (1) The department of health shall within one hundred and eighty (180) days of passage of this act promulgate procedures to be used in the collection, submission, identification, analysis, storage and disposition of DNA samples and typing results of DNA samples submitted under this chapter. These procedures shall meet or exceed the current standards for quality assurance and proficiency testing for DNA analysis issued by the FBI. All DNA sample typing results, all DNA records and all DNA samples shall be securely stored in the state of Rhode Island DNA database and DNA databank respectively, in the following manner: ADD}
{ADD (a) All DNA sample typing results and the DNA records shall be stored in a computer database after all personal identifiers have been removed. Further, these records shall be accessed only through the use of an encryption code. The encryption code shall be confidential and only those persons authorized by the department of health and charged with responsibilities under this act shall have access to these records and shall be given the encryption code. ADD}
{ADD (b) All DNA samples shall be securely locked, with a coded locking system, in a DNA databank at the department of health and only the director of the department of health and the head of the DNA laboratory shall have access to these DNA samples to carry out the provisions of this act. ADD}
{ADD (2) The department of health is authorized to contract with third parties for purposes of creating a DNA record only. Any third party contracting to carry out the functions of this act shall be subject to the same restrictions and requirements of this chapter and DNA samples provided to third parties pursuant to this section shall have all personal identification removed. ADD}
{ADD (3) Except as otherwise provided in section 12-1.5-11, DNA samples and DNA records collected under this chapter shall be used only for law enforcement identification purposes or to assist in the recovery of identification of human remains from disasters or for other humanitarian identification purposes, including identification of missing persons; and ADD}
{ADD (4) DNA samples and DNA records collected under this chapter shall never be used under the provisions of this chapter for the purpose of obtaining information about physical characteristics, traits or predispositions for disease. ADD}
{ADD 12-1.5-11. DNA database exchange. -- ADD} {ADD It shall be the duty of the department of health to collect DNA samples, to receive, store, and to perform analysis or to contract for DNA typing analysis with a qualified DNA laboratory that meets the regulations as established by the department of health, to classify and to file the DNA record of identification characteristic profiles of DNA samples submitted under this chapter and to make such information available as provided in this section. Access to the DNA databank shall be for identification analysis only and shall be limited upon a showing of need to duly constituted federal, state and local law enforcement agencies and their servicing forensic DNA laboratories and by court order to the defendant or his/her attorney in a criminal case. The contents of the DNA record of individuals in the state DNA database shall be made available: ADD}
{ADD (1) To criminal justice agencies or approved DNA forensic laboratories which serve these agencies; or ADD}
{ADD (2) Upon written or electronic request and in furtherance of an official investigation by a criminal justice agency or its designated forensic laboratory of a criminal offense or offender or suspected offender; ADD}
{ADD (3) To prosecuting attorneys who are actively involved in a case in which the DNA record of an individual is relevant; to grand juries and courts when such records are subpoenaed; to defense attorneys when the DNA record is relevant to a pending case. ADD}
{ADD (4) The department of health shall consistent with the provisions of this chapter promulgate regulations governing the methods of obtaining information from the state DNA database and CODIS and procedures for verification of the identity and authority of the requester; and ADD}
{ADD (5) The department of health may create a separate population database comprised of DNA samples obtained under this act after all personal identification is removed. The department of heath may share or disseminate the population database with other criminal justice agencies or forensic DNA laboratories that serve to assist the department of health with statistical databases. The population database may be made available to and searched by other agencies participating in the CODIS system. ADD}
{ADD 12-1.5-12. Cancellation of authority to access or exchange DNA records. -- ADD} {ADD The department of health shall be authorized, for good cause shown, to revoke or suspend the right of a forensic DNA laboratory within this state to access or exchange DNA identification records with criminal justice agencies. ADD}
{ADD 12-1.5-13. Expungement. -- ADD} {ADD 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 act 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. ADD}
{ADD 12-1.5-14. Prohibition and disclosure. -- ADD} {ADD (1) Any person, who, by virtue of employment or official position, or any person contracting to carry out any functions under this act, including any officers, employees and agents of such contractor, who has possession of or access to individually identifiable DNA information contained in the state DNA database or in the state DNA databank shall not disclose it in any manner to any person or agency not authorized to receive it knowing that such person or agency is not authorized to receive it. ADD}
{ADD (2) No person shall obtain individually identifiable DNA information from the state DNA database or the state DNA databank without authorization pursuant to this chapter to do so. ADD}
{ADD 12-1.5-15.Criminal penalties -- Civil Remedies. -- ADD} {ADD (1) Any person who, by virtue of employment or official position, or any person contracting to carry out any functions under this chapter, including any officers, employees and agents of such contractor, having possession of or access to individually identifiable DNA information contained in the state DNA database or in the state DNA databank and discloses it in any manner to any person or agency not authorized to receive it commits a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000) or imprisonment for not more than one (1) year or both. ADD}
{ADD (2) Except as authorized by law, any person, who, for purposes of having DNA analysis performed, obtains or attempts to obtain any DNA sample, or tampers or attempts to tamper with any DNA sample, commits a felony punishable by a fine not more than five thousand dollars ($5,000) or imprisonment for not more than five (5) years or both. ADD}
{ADD (3) Any person aggrieved by a violation of section 12-1.5-14 may, in addition, bring a civil action for damages, injunctive relief, and reasonable attorneys' fees. ADD}
{ADD 12-1.5-16. Confidentiality of records. -- ADD} {ADD All DNA profiles and samples submitted to the department of health pursuant to this chapter shall be treated as confidential and exempt from the provisions of chapter 38-2 except as otherwise provided in this act. ADD}
{ADD 12-1.5-17. Convicted persons. Refusal to give DNA sample. -- ADD} {ADD Any person who is required to have a DNA sample taken, 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/her release, regardless of whether or not such term was a special condition of his/her release on probation, parole, or home confinement or other form of supervised release. ADD}
{ADD 12-1.5-18. Interpretation and severability. -- ADD} {ADD The provisions of this chapter shall be liberally construed and shall be held to be in addition to, and not in substitution for or a limitation of, the provisions of any other law. If any provision or part thereof of this chapter or application thereof to any person or circumstances is held unconstitutional or otherwise invalid, the remainder of the chapter and the application of such provisions to any other persons or circumstances other than those to which it is held invalid shall not be affected thereby. ADD}
SECTION 2. This act shall take effect upon passage.
