H.B. 154

1

EXPANSION OF DNA DATABASE
2 2002 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Glenn L. Way
5 This act amends the Public Safety Code regarding the collection of DNA specimens and the
6 functions of the Bureau of Forensic Services regarding collection of these specimens. The
7 act expands the number of offenses for which a DNA specimen may be collected for the state
8 criminal identification data base and includes saliva as an acceptable DNA specimen, in
9 addition to blood. The act provides that collection of the offender's payment of a fee for
10 collection of the specimen is second in priority to victim restitution. The act creates the DNA
11 Specimen Restricted Account and specifies funding sources and uses of the account. The
12 effective date of this act is July 1, 2002.
13 This act affects sections of Utah Code Annotated 1953 as follows:
14 AMENDS:
15 53-10-403, as last amended by Chapter 302, Laws of Utah 1999
16 53-10-404, as renumbered and amended by Chapter 263, Laws of Utah 1998
17 53-10-405, as renumbered and amended by Chapter 263, Laws of Utah 1998
18 53-10-406, as renumbered and amended by Chapter 263, Laws of Utah 1998
19 64-13-21, as last amended by Chapter 282, Laws of Utah 1998
20 64-13-23, as last amended by Chapter 217, Laws of Utah 1992
21 64-13-30, as last amended by Chapter 119, Laws of Utah 1998
22 77-38a-404, as enacted by Chapter 137, Laws of Utah 2001
23 ENACTS:
24 53-10-403.5, Utah Code Annotated 1953
25 53-10-406.5, Utah Code Annotated 1953
26 Be it enacted by the Legislature of the state of Utah:
27 Section 1. Section 53-10-403 is amended to read:

28 53-10-403. DNA specimen analysis -- Application to offenders.
29 Sections 53-10-404 , 53-10-405 , and 53-10-406 apply to any person who has pled guilty to
30 or has been convicted of any of the following offenses:
31 [(1) unlawful sexual activity with minor, sexual abuse of a minor, unlawful sexual conduct
32 with a 16 or 17 year old, rape, rape of a child, object rape, object rape of a child, forcible sodomy,
33 sodomy of a child, forcible sexual abuse, sexual abuse of a child or aggravated sexual abuse of a
34 child, aggravated sexual assault, sexual abuse without consent of the victim, incest, sexual
35 exploitation of a minor; or]
36 [(2) murder or aggravated murder.]
37 (1) any felony under Title 76, Utah Criminal Code, and any violation of Section
38 76-5-401.1 , sexual abuse of a minor;
39 (2) an attempt to commit a burglary, or any class A burglary offense; or
40 (3) any offense under Subsection (1) or (2):
41 (a) for which the court enters a judgment for conviction to a lower degree of offense under
42 Section 76-3-402 ; or
43 (b) regarding which the court allows the defendant to enter a plea in abeyance as defined
44 in Section 77-2a-1 .
45 Section 2. Section 53-10-403.5 is enacted to read:
46 53-10-403.5. Definitions.
47 As used in Sections 53-10-404 , 53-10-405 , and 53-10-406 :
48 (1) "DNA" means deoxyribonucleic acid.
49 (2) "DNA specimen" or "specimen" means a sample of a person's saliva or blood.
50 Section 3. Section 53-10-404 is amended to read:
51 53-10-404. DNA specimen analysis -- Requirement to obtain the specimen.
52 (1) A person convicted of an offense listed in Section 53-10-403 or any person added to
53 the sex offender register as defined in Section 77-27-21.5 shall provide a [blood sample at the
54 request of the appropriate agency designated in Subsection (4)] DNA specimen.
55 (2) (a) The court shall include in the judgment of conviction an order stating that a [blood
56 sample] DNA specimen shall be [drawn at the request of the appropriate agency] obtained and,
57 unless the convicted person lacks the ability to pay, he shall reimburse the appropriate agency $25
58 for the cost of [drawing and transmitting the blood sample] obtaining the DNA specimen.

59 (b) All fees collected under Subsection (2)(a) shall be deposited in the DNA Specimen
60 Restricted Account created in Section 53-10-406.5 .
61 (c) Obtaining a saliva DNA specimen complies with the court order under Subsection
62 (2)(a) unless the court specifies in the order that the DNA specimen is to be blood.
63 [(b)] (d) If the judgment places the convicted person on probation, the court shall order
64 him to submit to the [drawing of a blood sample] obtaining of a DNA specimen as a condition of
65 the probation.
66 (3) (a) The appropriate agency shall cause a [blood sample] DNA specimen to be [drawn]
67 obtained as soon as possible after conviction and transmitted to the Department of Public Safety.
68 (b) If notified by the Department of Public Safety that a [sample] DNA specimen is not
69 adequate for analysis, the agency shall [draw] obtain and transmit an additional [sample] DNA
70 specimen.
71 (4) (a) The Department of Corrections is the appropriate agency whenever the convicted
72 person is committed to the custody of or is under the supervision of the Department of Corrections.
73 (b) In all other cases, the appropriate agency is the law enforcement agency attending upon
74 the court.
75 (5) (a) As used in this Subsection (5), "department" means the Department of Corrections.
76 (b) Priority of obtaining DNA specimens by the department is:
77 (i) first, to obtain DNA specimens of persons who as of July 1, 2002, are in the custody
78 of or under the supervision of the department before these persons are released from incarceration,
79 parole, or probation, if their release date is prior to that of persons under Subsections (5)(b)(ii), but
80 in no case later than October 1, 2002; and
81 (ii) second, the department shall obtain DNA specimens from persons who are committed
82 to the custody of the department or who are placed under the supervision of the department after
83 July 1, 2002, within 120 days after the commitment, if possible, but not later than prior to release
84 from incarceration if the person is imprisoned, or prior to the termination of probation if the person
85 is placed on probation.
86 (c) The priority for obtaining DNA specimens from persons under Subsection (5)(b)(ii)
87 is:
88 (i) persons on probation;
89 (ii) persons on parole; and

90 (iii) incarcerated persons.
91 (d) Implementation of the schedule of priority under Subsection (5)(c) is subject to the
92 priority of Subsection (5)(b)(i), to ensure that the Department of Corrections obtains DNA
93 specimens from persons in the custody of or under the supervision of the Department of
94 Corrections as of July 1, 2002, prior to their release.
95 (6) (a) The Department of Corrections shall by rule establish procedures for obtaining
96 saliva DNA specimens, and shall provide training for employees designated to collect saliva DNA
97 specimens.
98 (b) Correctional officers, including those employed by the adult probation and parole
99 section of the Department of Corrections, may be designated by the department to obtain the saliva
100 DNA specimens required under this section in accordance with accepted protocol and after
101 receiving appropriate training.
102 (c) Blood DNA specimens shall be obtained in accordance with Section 53-10-405 .
103 Section 4. Section 53-10-405 is amended to read:
104 53-10-405. DNA specimen analysis -- Blood sample to be drawn by professional.
105 (1) (a) A blood sample shall be drawn in a medically acceptable manner by a licensed
106 professional nurse, a licensed practical nurse, a paramedic, a qualified medical technician, a
107 licensed physician, or other person licensed by the state [of Utah] for this purpose.
108 [(2)] (b) A person authorized by this section to draw a blood sample shall not be held
109 civilly liable for drawing a sample in a medically acceptable manner.
110 (2) A saliva sample shall be obtained by the appropriate agency, as provided under
111 Subsection 53-10-404 (4). The sample shall be obtained in a professionally acceptable manner,
112 using appropriate procedures to ensure the sample is adequate for DNA analysis.
113 (3) [No] A test result or opinion based upon a test result [shall] regarding a DNA specimen
114 may not be rendered inadmissible as evidence solely because of deviations from procedures
115 adopted by the department that do not affect the reliability of the opinion or test result.
116 (4) [No sample] A DNA specimen is not required to be [drawn] obtained if:
117 (a) the department notifies the court or the appropriate agency that it has previously
118 received an adequate [blood sample drawn] DNA specimen obtained from the convicted person
119 in accordance with this section; or
120 (b) the court determines that [drawing a sample] obtaining a DNA specimen would create

121 a substantial and unreasonable risk to the health of the convicted person.
122 Section 5. Section 53-10-406 is amended to read:
123 53-10-406. DNA specimen analysis -- Bureau responsibilities.
124 (1) The bureau shall:
125 (a) store all [blood samples] DNA specimens received and autoradiographs and other
126 physical evidence obtained from analysis of those [samples] specimens;
127 (b) analyze the [samples] specimens to establish the genetic profile of the donor or to
128 otherwise determine the identity of persons or contract with other qualified public or private
129 laboratories to conduct the analysis;
130 (c) maintain a criminal identification data base containing information derived from
131 [blood] DNA analysis;
132 (d) utilize the [samples] specimens to create statistical population frequency data bases,
133 provided that genetic profiles or other information in a population frequency data base may not be
134 identified with specific individuals; [and]
135 (e) ensure that the DNA identification system does not provide information allowing
136 prediction of genetic disease or predisposition to illness; and
137 [(e)] (f) make rules in accordance with Title 63, Chapter 46a, Utah Administrative
138 Rulemaking Act, establishing procedures for [drawing] obtaining, transmitting, and analyzing
139 [blood samples] DNA specimens and for storing and destroying [blood samples] DNA specimens,
140 autoradiographs, and other physical evidence and criminal identification information obtained from
141 [such] the analysis.
142 (2) Procedures for [blood] DNA analysis may include all techniques which the Department
143 of Public Safety determines are accurate and reliable in establishing identity, including but not
144 limited to, analysis of DNA [(deoxyribonucleic acid)], antigen antibodies, polymorphic enzymes,
145 or polymorphic proteins.
146 (3) (a) In accordance with Subsection 63-2-302 (1), all [samples] DNA specimens received
147 shall be classified as private [and the].
148 (b) The Department of Public Safety may not transfer or disclose any [sample] DNA
149 specimen, autoradiograph, physical evidence, or criminal identification information obtained,
150 stored, or maintained under this section, except under its provisions.
151 (4) Notwithstanding the provisions of Subsection 63-2-202 (1), the department may deny

152 inspection if it determines that there is a reasonable likelihood that [such] the inspection would
153 prejudice a pending criminal investigation.
154 (5) The department shall adopt procedures governing the inspection of records, [samples]
155 DNA specimens, and autoradiographs and challenges to the accuracy of records. The procedures
156 shall accommodate the need to preserve the materials from contamination and destruction.
157 (6) (a) Whenever a court reverses the conviction, judgment, or order that created an
158 obligation to provide a [blood sample] DNA specimen, the person who provided the [sample]
159 specimen, may request destruction of the [sample] specimen and any criminal identification record
160 created in connection with that [sample] specimen.
161 (b) Upon receipt of a written request for destruction pursuant to this section and a certified
162 copy of the court order reversing the conviction, judgment, or order, the Department of Public
163 Safety shall destroy any [sample] specimen received from the person, any physical evidence
164 obtained from that [sample] specimen, and any criminal identification records pertaining to the
165 person, unless the department determines that the person has otherwise become obligated to submit
166 a [blood sample] DNA specimen as a result of a separate conviction or juvenile adjudication for
167 an offense listed in Section 53-10-403 .
168 (7) The department is not required to destroy an autoradiograph or other item of physical
169 evidence obtained from a [blood sample] DNA specimen if evidence relating to another person
170 subject to the provisions of Sections 53-10-404 and 53-10-405 would [thereby] as a result be
171 destroyed.
172 (8) A [sample] DNA specimen, autoradiograph, physical evidence, or criminal
173 identification record may not be affected by an order to set aside a conviction, except under the
174 provisions of this section.
175 (9) If funding is not available for analysis of any of the DNA specimens collected under
176 this part, the bureau shall store the collected specimens until funding is made available for analysis
177 through state or federal funds.
178 Section 6. Section 53-10-406.5 is enacted to read:
179 53-10-406.5. DNA Specimen Restricted Account.
180 (1) There is created the DNA Specimen Restricted Account, which is referred to in this
181 section as "the account."
182 (2) The sources of monies for the account are:

183 (a) DNA collection fees paid under Section 53-10-404 ;
184 (b) any appropriations made to the account by the Legislature; and
185 (c) all federal monies provided to the state for the purpose of funding the collection or
186 analysis of DNA specimens collected under Section 53-10-403 .
187 (3) The account shall earn interest, and this interest shall be deposited in the account.
188 (4) The Legislature may appropriate monies from the account solely for the following
189 purposes:
190 (a) to the Department of Corrections for the costs of collecting DNA specimens as required
191 under Section 53-10-403 ; and
192 (b) to the Department of Public Safety for the costs of storing and analyzing DNA
193 specimens in accordance with the requirements of this part.
194 (5) Appropriations from the account to the Department of Corrections and to the
195 Department of Public Safety are nonlapsing.
196 Section 7. Section 64-13-21 is amended to read:
197 64-13-21. Supervision of sentenced offenders placed in community -- Rulemaking
198 -- POST certified parole or probation officers and peace officers -- Duties -- DNA collection
199 fee -- Supervision fee.
200 (1) (a) The department, except as otherwise provided by law, shall supervise sentenced
201 offenders placed in the community on probation by the courts, on parole by the Board of Pardons
202 and Parole, or upon acceptance for supervision under the terms of the Interstate Compact for the
203 Supervision of Parolees and Probationers.
204 (b) Standards for the supervision of offenders shall be established by the department in
205 accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, giving priority,
206 based on available resources, to felony offenders.
207 (2) Employees of the department who are POST certified as law enforcement officers or
208 correctional officers and who are designated as parole and probation officers by the executive
209 director have the following duties:
210 (a) monitoring, investigating, and supervising a parolee's or probationer's compliance with
211 the conditions of the parole or probation agreement;
212 (b) investigating or apprehending any offender who has escaped from the custody of the
213 department or absconded from supervision;

214 (c) providing investigative services for the courts, the department, or the Board of Pardons
215 and Parole; [or]
216 (d) supervising any offender during transportation; or
217 (e) collecting DNA specimens when the specimens are required under Section 53-10-404 .
218 (3) (a) If the offender is required under Section 53-10-404 to reimburse the department for
219 the cost of obtaining the offender's DNA specimen, this reimbursement is the next priority after
220 restitution the offender owes to a victim. However, the reimbursement under this Subsection (3)(a)
221 has priority over the supervision fee in Subsection (3)(b).
222 [(3) (a)] (b) A monthly supervision fee of $30 shall be collected from each offender on
223 probation or parole. The fee may be suspended or waived by the department upon a showing by
224 the offender that imposition would create a substantial hardship or if the offender owes restitution
225 to a victim.
226 [(b)] (c) (i) The department shall make rules in accordance with Title 63, Chapter 46a,
227 Utah Administrative Rulemaking Act, specifying the criteria for suspension or waiver of the DNA
228 specimen fee or the supervision fee and the circumstances under which an offender may request
229 a hearing.
230 (ii) In determining whether the imposition of the supervision fee would constitute a
231 substantial hardship, the department shall consider the financial resources of the offender and the
232 burden that the fee would impose, with regard to the offender's other obligations.
233 Section 8. Section 64-13-23 is amended to read:
234 64-13-23. Offender's income and finances.
235 The department may require each offender, while in the custody of the department or while
236 on probation or parole, to place funds received or earned by him from any source into an account
237 administered by the department or into a joint account with the department at a federally insured
238 financial institution.
239 (1) The department may require each offender to maintain a minimum balance in either
240 or both accounts for the particular offender's use upon discharge from the custody of the
241 department or upon completion of parole or probation.
242 (2) If the funds are placed in a joint account at a federally insured financial institution:
243 (a) any interest accrues to the benefit of the offender account; and
244 (b) the department may require that the signatures of both the offender and a departmental

245 representative be submitted to the financial institution to withdraw funds from the account.
246 (3) If the funds are placed in an account administered by the department, the department
247 may by rule designate a certain portion of the offender's funds as interest-bearing savings, and
248 another portion as noninterest-bearing to be used for day-to-day expenses.
249 (4) The department may withhold part of the offender's funds in either account for
250 expenses of:
251 (a) incarceration, supervision, or treatment; [for]
252 (b) court-ordered restitution, reparation, fines, alimony, support payments, or similar
253 court-ordered payments; [for]
254 (c) obtaining the offender's DNA specimen, if the offender is required under Section
255 53-10-404 to provide a specimen;
256 (d) department-ordered restitution; and [for]
257 (e) any other debt to the state.
258 (5) (a) Offenders [shall] may not be granted free process in civil actions, including
259 petitions for a writ of habeas corpus, if, at any time from the date the cause of action arose through
260 the date the cause of action remains pending, there are any funds in either account which have not
261 been withheld or are not subject to withholding under Subsection (3) or (4).
262 (b) The amount assessed for the filing fee, service of process and other fees and costs shall
263 not exceed the total amount of funds the offender has in excess of the indigence threshold
264 established by the department but not less than $25 including the withholdings under Subsection
265 (3) or (4) during the identified period of time.
266 (c) The amounts assessed shall not exceed the regular fees and costs provided by law.
267 (6) The department may disclose information on offender accounts to the Office of
268 Recovery Services and other appropriate state agencies.
269 Section 9. Section 64-13-30 is amended to read:
270 64-13-30. Expenses incurred by offenders -- Payment to department or county jail.
271 (1) (a) The department shall establish and collect from offenders on work release programs
272 reasonable costs of maintenance, transportation, and incidental expenses incurred by the
273 department on behalf of the offenders.
274 (b) Priority shall be given to restitution and family support obligations.
275 (c) If the offender is required under Section 53-10-404 to reimburse the department for the

276 cost of obtaining the offender's DNA specimen, this reimbursement is the next priority after
277 Subsection (1)(b).
278 (2) The department, under its rules, may advance funds to any offender as necessary to
279 establish the offender in a work release program.
280 (3) The department or county jail may require an inmate to make a reasonable copayment
281 for medical services provided by the department or county jail. An inmate may not be denied
282 medical treatment if he is unable to pay the copayment because of inadequate financial resources.
283 Section 10. Section 77-38a-404 is amended to read:
284 77-38a-404. Priority.
285 (1) If restitution to more than one person, agency, or entity is set at the same time, the
286 department shall establish the following priorities of payment, except as provided in Subsection
287 (2):
288 (a) the crime victim;
289 (b) the Office of Crime Victim Reparations;
290 (c) any other government agency which has provided reimbursement to the victim as a
291 result of the offender's criminal conduct; and
292 (d) any insurance company which has provided reimbursement to the victim as a result of
293 the offender's criminal conduct.
294 (2) If the offender is required under Section 53-10-404 to reimburse the department for the
295 cost of obtaining the offender's DNA specimen, this reimbursement is the next priority after
296 restitution to the crime victim under Subsection (1)(a).
297 [(2)] (3) All money collected for court-ordered obligations from offenders by the
298 department will be applied:
299 (a) first, to victim restitution[, absent];
300 (b) second, if applicable, to the cost of obtaining a DNA sample under Subsection (2); and
301 (c) after the requirements of Subsections (3)(a) and (b), to the $30 per month required to
302 be collected by the department under Section 64-13-21 .
303 Section 11. Effective date.
304 This act takes effect on July 1, 2002.

Legislative Review Note
as of 2-6-02 8:40 AM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel