H.B. 107

1

DNA AMENDMENTS
2 2003 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: J. Stuart Adams
5 This act modifies the Public Safety Code regarding the collection of DNA samples from
6 offenders. This act specifies that offenders incarcerated or on parole in this state for an
7 applicable offense committed outside the state, and offenders who have committed
8 immigration violations, must also provide a DNA specimen. This act further specifies
9 those offenders from whom the county sheriff is to collect a DNA specimen. This act
10 changes DNA specimen records from private to protected information. This act provides
11 that fingerprints of juveniles shall be taken if the juvenile has committed an offense
12 where a DNA specimen is required. This act makes technical amendments regarding the
13 operation of the DNA sample collection process.
14 This act affects sections of Utah Code Annotated 1953 as follows:
15 AMENDS:
16 53-10-403, as last amended by Chapter 2, Laws of Utah 2002, Fifth Special Session
17 53-10-404, as last amended by Chapter 2, Laws of Utah 2002, Fifth Special Session
18 53-10-406, as last amended by Chapter 140, Laws of Utah 2002
19 78-3a-904, as last amended by Chapter 108, Laws of Utah 1998
20 Be it enacted by the Legislature of the state of Utah:
21 Section 1. Section 53-10-403 is amended to read:
22 53-10-403. DNA specimen analysis -- Application to offenders, including minors.
23 (1) Sections 53-10-404 , 53-10-405 , and 53-10-406 apply to any person who:
24 (a) has pled guilty to or has been convicted of any of the offenses under Subsection (2)
25 and who is on probation, parole, or incarcerated for any offense under Subsection (2) on or
26 after July 1, 2002[, or who];
27 (b) has pled guilty to or has been convicted by any other state or by the United States

28 government of an offense which if committed in this state would be punishable as one or more
29 of the offenses listed in Subsection (2), and who is on probation, parole, or incarcerated in this
30 state for the offense on or after July 1, 2003;
31 (c) is convicted in this state of an immigration violation on or after July 1, 2003; or
32 (d) is a minor under Subsection (3).
33 (2) Offenses referred to in Subsection (1) are:
34 (a) any felony under the Utah Code, and any violation of Section 76-5-401.1 , sexual
35 abuse of a minor;
36 (b) an attempt to commit a burglary, or any class A burglary offense; or
37 (c) any offense under Subsection (2)(a) or (b):
38 (i) for which the court enters a judgment for conviction to a lower degree of offense
39 under Section 76-3-402 ; or
40 (ii) regarding which the court allows the defendant to enter a plea in abeyance as
41 defined in Section 77-2a-1 .
42 (3) A minor under Subsection (1) is a minor 14 years of age or older whom [the] a
43 Utah court has adjudicated to be within the jurisdiction of the juvenile court due to the
44 commission of any offense described in Subsection (2), and who is:
45 (a) within the jurisdiction of the juvenile court on or after July 1, 2002 for an offense
46 under Subsection (2); or
47 (b) in the legal custody of the Division of Youth Corrections on or after July 1, 2002
48 for an offense under Subsection (2).
49 Section 2. Section 53-10-404 is amended to read:
50 53-10-404. DNA specimen analysis -- Requirement to obtain the specimen.
51 (1) As used in this section, "person" refers to any person described under Section
52 53-10-403 .
53 (2) (a) A person under Section 53-10-403 or any person added to the sex offender
54 register as defined in Section 77-27-21.5 shall provide a DNA specimen and shall reimburse
55 the responsible agency $75 for the cost of obtaining the DNA specimen unless the agency
56 determines the person lacks the ability to pay.
57 (b) The responsible agencies shall establish guidelines and procedures for determining
58 if the person is able to pay the fee.

59 (3) (a) All fees collected under Subsection (2) shall be deposited in the DNA Specimen
60 Restricted Account created in Section 53-10-407 , except that sheriffs collecting the fee shall
61 deposit $60 of the fee in the DNA Specimen Restricted Account and retain the balance of $15
62 for the costs of obtaining the saliva DNA specimen.
63 (b) The responsible agency shall determine the method of collecting the DNA
64 specimen. Unless the responsible agency determines there are substantial reasons for using a
65 different method of collection or the person refuses to cooperate with the collection, the
66 preferred method of collection shall be obtaining a saliva specimen.
67 (c) The responsible agencies may use reasonable force, as established by their
68 individual guidelines and procedures, to collect the DNA sample if the person refuses to
69 cooperate with the collection.
70 (d) If the judgment places the person on probation, the person shall submit to the
71 obtaining of a DNA specimen as a condition of the probation.
72 (e) Under this section a person is required to provide one DNA specimen. The person
73 shall provide an additional DNA specimen only if the DNA specimen previously provided is
74 not adequate for analysis.
75 (4) (a) The responsible agency shall cause a DNA specimen to be obtained as soon as
76 possible after conviction, plea, or finding of jurisdiction by the juvenile court, and transmitted
77 to the Department of Public Safety.
78 (b) If notified by the Department of Public Safety that a DNA specimen is not adequate
79 for analysis, the agency shall obtain and transmit an additional DNA specimen.
80 (5) (a) The Department of Corrections is the responsible agency whenever the person is
81 committed to the custody of or is under the supervision of the Department of Corrections.
82 (b) The juvenile court is the responsible agency regarding a minor under Subsection
83 53-10-403 (3), but if the minor has been committed to the legal custody of the Division of
84 Youth Corrections, that division is the responsible agency if a DNA specimen of the minor has
85 not previously been obtained by the juvenile court under Section 78-3a-118 .
86 (c) [(i)] The sheriff operating a county jail is the responsible agency regarding the
87 collection of DNA specimens from persons who:
88 (i) have pled guilty to or have been convicted of an offense listed under Subsection
89 53-10-403 (2) but who have not been committed to the custody of or are not under the

90 supervision of the Department of Corrections; and
91 (ii) are incarcerated in the county jail:
92 (A) as a condition of probation for a felony offense; or
93 (B) for a [class A burglary] misdemeanor offense for which collection of a DNA
94 specimen is required.
95 [(ii)] (d) The sheriff under Subsection (5)(c) shall:
96 (i) designate employees to obtain the saliva DNA specimens required under Section
97 53-10-403 [. The sheriff shall]; and
98 (ii) ensure that employees designated to collect the DNA specimens receive appropriate
99 training and that the specimens are obtained in accordance with accepted protocol.
100 (6) (a) As used in this Subsection (6), "department" means the Department of
101 Corrections.
102 (b) Priority of obtaining DNA specimens by the department is:
103 (i) first, to obtain DNA specimens of persons who as of July 1, 2002, are in the custody
104 of or under the supervision of the department before these persons are released from
105 incarceration, parole, or probation, if their release date is prior to that of persons under
106 Subsections (6)(b)(ii), but in no case later than July 1, 2004; and
107 (ii) second, the department shall obtain DNA specimens from persons who are
108 committed to the custody of the department or who are placed under the supervision of the
109 department after July 1, 2002, within 120 days after the commitment, if possible, but not later
110 than prior to release from incarceration if the person is imprisoned, or prior to the termination
111 of probation if the person is placed on probation.
112 (c) The priority for obtaining DNA specimens from persons under Subsection (6)(b)(ii)
113 is:
114 (i) persons on probation;
115 (ii) persons on parole; and
116 (iii) incarcerated persons.
117 (d) Implementation of the schedule of priority under Subsection (6)(c) is subject to the
118 priority of Subsection (6)(b)(i), to ensure that the Department of Corrections obtains DNA
119 specimens from persons in the custody of or under the supervision of the Department of
120 Corrections as of July 1, 2002, prior to their release.

121 (7) (a) As used in this Subsection (7), "court" means the juvenile court and "division"
122 means the Division of Youth Corrections.
123 (b) Priority of obtaining DNA specimens by the court from minors under Section
124 53-10-403 who are under the jurisdiction of the court but who are not in the legal custody of
125 the division shall be:
126 (i) first, to obtain specimens from minors who as of July 1, 2002, are within the court's
127 jurisdiction, prior to termination of the court's jurisdiction over these minors; and
128 (ii) second, to obtain specimens from minors who are found to be within the court's
129 jurisdiction after July 1, 2002, within 120 days of the minor's being found to be within the
130 court's jurisdiction, if possible, but not later than prior to termination of the court's jurisdiction
131 over the minor.
132 (c) Priority of obtaining DNA specimens by the division from minors under Section
133 53-10-403 who are committed to the legal custody of the division shall be:
134 (i) first, to obtain specimens from minors who as of July 1, 2002, are within the
135 division's legal custody and who have not previously provided a DNA specimen under this
136 section, prior to termination of the division's legal custody of these minors; and
137 (ii) second, to obtain specimens from minors who are placed in the legal custody of the
138 division after July 1, 2002, within 120 days of the minor's being placed in the custody of the
139 division, jurisdiction, if possible, but not later than prior to termination of the court's
140 jurisdiction over the minor.
141 (8) (a) The Department of Corrections, the juvenile court, and the Division of Youth
142 Corrections shall by policy establish procedures for obtaining saliva DNA specimens, and shall
143 provide training for employees designated to collect saliva DNA specimens.
144 (b) The department may designate correctional officers, including those employed by
145 the adult probation and parole section of the Department of Corrections, to obtain the saliva
146 DNA specimens required under this section. The department shall ensure that the designated
147 employees receive appropriate training and that the specimens are obtained in accordance with
148 accepted protocol.
149 (c) Blood DNA specimens shall be obtained in accordance with Section 53-10-405 .
150 Section 3. Section 53-10-406 is amended to read:
151 53-10-406. DNA specimen analysis -- Bureau responsibilities.

152 (1) The bureau shall:
153 (a) store all DNA specimens received and other physical evidence obtained from
154 analysis of those specimens;
155 (b) analyze the specimens to establish the genetic profile of the donor or to otherwise
156 determine the identity of persons or contract with other qualified public or private laboratories
157 to conduct the analysis;
158 (c) maintain a criminal identification data base containing information derived from
159 DNA analysis;
160 (d) utilize the specimens to create statistical population frequency data bases, provided
161 that genetic profiles or other information in a population frequency data base may not be
162 identified with specific individuals;
163 (e) ensure that the DNA identification system does not provide information allowing
164 prediction of genetic disease or predisposition to illness; and
165 (f) make rules in accordance with Title 63, Chapter 46a, Utah Administrative
166 Rulemaking Act, establishing procedures for obtaining, transmitting, and analyzing DNA
167 specimens and for storing and destroying DNA specimens and other physical evidence and
168 criminal identification information obtained from the analysis.
169 (2) Procedures for DNA analysis may include all techniques which the Department of
170 Public Safety determines are accurate and reliable in establishing identity, including but not
171 limited to, analysis of DNA, antigen antibodies, polymorphic enzymes, or polymorphic
172 proteins.
173 (3) (a) In accordance with [Subsection 63-2-302 (1)] Section 63-2-304 , all DNA
174 specimens received shall be classified as [private] protected.
175 (b) The Department of Public Safety may not transfer or disclose any DNA specimen,
176 physical evidence, or criminal identification information obtained, stored, or maintained under
177 this section, except under its provisions.
178 (4) Notwithstanding the provisions of Subsection 63-2-202 (1), the department may
179 deny inspection if it determines that there is a reasonable likelihood that the inspection would
180 prejudice a pending criminal investigation.
181 (5) The department shall adopt procedures governing the inspection of records, DNA
182 specimens, and challenges to the accuracy of records. The procedures shall accommodate the

183 need to preserve the materials from contamination and destruction.
184 (6) (a) Whenever a court reverses the conviction, judgment, or order that created an
185 obligation to provide a DNA specimen, the person who provided the specimen may request
186 destruction of the specimen and any criminal identification record created in connection with
187 that specimen.
188 (b) Upon receipt of a written request for destruction pursuant to this section and a
189 certified copy of the court order reversing the conviction, judgment, or order, the Department
190 of Public Safety shall destroy any specimen received from the person, any physical evidence
191 obtained from that specimen, and any criminal identification records pertaining to the person,
192 unless the department determines that the person has otherwise become obligated to submit a
193 DNA specimen as a result of a separate conviction or juvenile adjudication for an offense listed
194 in Section 53-10-403 .
195 (7) The department is not required to destroy any item of physical evidence obtained
196 from a DNA specimen if evidence relating to another person subject to the provisions of
197 Sections 53-10-404 and 53-10-405 would as a result be destroyed.
198 (8) A DNA specimen, physical evidence, or criminal identification record may not be
199 affected by an order to set aside a conviction, except under the provisions of this section.
200 (9) If funding is not available for analysis of any of the DNA specimens collected
201 under this part, the bureau shall store the collected specimens until funding is made available
202 for analysis through state or federal funds.
203 Section 4. Section 78-3a-904 is amended to read:
204 78-3a-904. When photographs, fingerprints, or HIV infection tests may be taken
205 -- Distribution -- Expungement.
206 (1) Photographs may be taken of a minor 14 years of age or older who:
207 (a) is taken into custody for the alleged commission of an offense under Sections
208 78-3a-104 , 78-3a-601 , and 78-3a-602 that would also be an offense if the minor were 18 years
209 of age or older; or
210 (b) has been determined to be a serious habitual offender for tracking under Section
211 63-92-2 and is under the continuing jurisdiction of the Juvenile Court or the Division of Youth
212 Corrections.
213 (2) (a) Fingerprints may be taken of a minor 14 years of age or older who:

214 (i) is taken into custody for the alleged commission of an offense that would be a
215 felony if the minor were 18 years of age or older; [or]
216 (ii) has been determined to be a serious habitual offender for tracking under Section
217 63-92-2 and is under the continuing jurisdiction of the Juvenile Court or the Division of Youth
218 Corrections[.]; or
219 (iii) is required to provide a DNA specimen under Section 53-10-403 .
220 (b) Fingerprints shall be forwarded to the Bureau of Criminal Identification and may be
221 stored by electronic medium.
222 (3) HIV testing may be conducted on a minor who is taken into custody after having
223 been adjudicated to have violated state law prohibiting a sexual offense under Title 76, Chapter
224 5, Part 4, Sexual Offenses, upon the request of the victim or the parent or guardian of a minor
225 victim.
226 (4) HIV tests, photographs, and fingerprints may not be taken of a minor younger than
227 14 years of age without the consent of the court.
228 (5) (a) Photographs may be distributed or disbursed to individuals or agencies other
229 than state or local law enforcement agencies only when a minor 14 years of age or older is
230 charged with an offense which would be a felony if committed by an adult.
231 (b) Fingerprints may be distributed or disbursed to individuals or agencies other than
232 state or local law enforcement agencies.
233 (6) When a minor's juvenile record is expunged, all photographs and other records as
234 ordered shall upon court order be destroyed by the law enforcement agency. Fingerprint records
235 may not be destroyed.




Legislative Review Note
as of 1-17-03 4:02 PM

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

Office of Legislative Research and General Counsel