Representative Steve Eliason proposes the following substitute bill:


1     
DNA SPECIMEN ANALYSIS AMENDMENTS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Steve Eliason

5     
Senate Sponsor: Lyle W. Hillyard

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to DNA specimen analysis and destruction.
10     Highlighted Provisions:
11          This bill:
12          ▸     requires a sheriff to provide a person notice related to the destruction of a DNA
13     specimen and removal of the person's DNA sample and records from a database;
14          ▸     requires certain DNA specimen to be processed and entered into a database;
15          ▸     permits a person to request the destruction of the person's DNA specimen and
16     related records under certain conditions; and
17          ▸     makes technical and conforming changes.
18     Money Appropriated in this Bill:
19          This bill appropriates in the fiscal year 2019:
20          ▸     to the Department of Public Safety -- Public Safety Programs and Operations, as an
21     ongoing appropriation:
22               •     from the General Fund, Ongoing, $450,000.
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:
26     AMENDS:
27          53-10-404.5, as last amended by Laws of Utah 2014, Chapter 331
28          53-10-406, as last amended by Laws of Utah 2010, Chapter 405
29     

30     Be it enacted by the Legislature of the state of Utah:
31          Section 1. Section 53-10-404.5 is amended to read:
32          53-10-404.5. Obtaining DNA specimen at time of booking -- Payment of fee upon
33     conviction.
34          (1) (a) When a sheriff books a person for any offense under Subsections
35     53-10-403(1)(c) and (d), the sheriff shall:
36          (i) except as provided in Subsection (1)(b), obtain a DNA specimen from the person
37     upon booking of the person at the county jail[, except under Subsection (1)(b).]; and
38          (ii) provide the person, in a manner the bureau specifies, notice of the process
39     described in Subsection 53-10-406(6)(b) to request destruction of the DNA specimen and
40     removal of the person's DNA sample and DNA records from the database described in
41     Subsection 53-10-406(1)(d).
42          (b) If at the time of booking the sheriff is able to obtain information from the bureau
43     stating that the bureau has on file a DNA specimen for the person, the sheriff is not required to
44     obtain an additional DNA specimen.
45          (2) The person booked under Subsection (1) shall pay a fee of $150 for the cost of
46     obtaining the DNA specimen if:
47          (a) the charge upon which the booking is based is resolved by a conviction or the
48     person is convicted of any charge arising out of the same criminal episode regarding which the
49     DNA specimen was obtained; and
50          (b) the person's DNA sample is not on file under Subsection (1)(b).
51          (3) (a) All fees collected under Subsection (2) shall be deposited in the DNA Specimen
52     Restricted Account created in Section 53-10-407, except that the agency collecting the fee may
53     retain not more than $25 per individual specimen for the costs of obtaining the DNA specimen.
54          (b) The agency collecting the $150 fee may not retain from each separate fee more than
55     $25, and no amount of the $150 fee may be credited to any other fee or agency obligation.
56          (4) Any DNA specimen obtained under this section shall be [held and may not be
57     processed until] processed and entered into the database described in Subsection
58     53-10-406(1)(d), if the DNA specimen is:
59          [(a) the court has bound the person over for trial following a preliminary hearing for
60     any charge arising out of the same criminal episode regarding which the person was booked;]
61          [(b) the person has waived the preliminary hearing for any charge arising out of the
62     same criminal episode regarding which the person was booked; or]
63          [(c) a grand jury has returned an indictment for any charge arising out of the same
64     criminal episode regarding which the person was booked.]
65          (a) obtained in accordance with Subsections 53-10-403(1)(c) through (e); and
66          (b) in the possession of the bureau.
67          Section 2. Section 53-10-406 is amended to read:
68          53-10-406. DNA specimen analysis -- Bureau responsibilities.
69          (1) The bureau shall:
70          (a) administer and oversee the DNA specimen collection process;
71          (b) store [all DNA specimens] each DNA specimen received and other physical
72     evidence obtained from analysis of [those specimens] each specimen;
73          (c) analyze [the specimens] each specimen, or contract with a qualified public or
74     private laboratory to analyze the specimen, to establish the genetic profile of the donor or to
75     otherwise determine the identity of [persons or contract with other qualified public or private
76     laboratories to conduct the analysis] the person;
77          (d) maintain a criminal identification data base containing information derived from
78     DNA analysis;
79          (e) utilize the specimens to create statistical population frequency data bases, provided
80     that genetic profiles or other information in a population frequency data base may not be
81     identified with specific individuals;
82          (f) ensure that the DNA identification system does not provide information allowing
83     prediction of genetic disease or predisposition to illness;
84          (g) ensure that only DNA markers routinely used or accepted in the field of forensic
85     science are used to establish the gender and unique individual identification of the donor;
86          (h) utilize only those DNA analysis procedures that are consistent with, and do not
87     exceed, procedures established and used by the Federal Bureau of Investigation for the forensic
88     analysis of DNA; and
89          [(i) destroy a DNA specimen obtained under this part if criminal charges have not been
90     filed within 90 days after booking for an alleged offense under Subsection 53-10-403(2)(c);
91     and]
92          [(j)] (i) make rules in accordance with Title 63G, Chapter 3, Utah Administrative
93     Rulemaking Act, establishing procedures for obtaining, transmitting, and analyzing DNA
94     specimens and for storing and destroying DNA specimens and other physical evidence and
95     criminal identification information obtained from the analysis.
96          (2) Procedures for DNA analysis may include all techniques which the [Department of
97     Public Safety] department determines are accurate and reliable in establishing identity,
98     including [but not limited to,] analysis of DNA, antigen antibodies, polymorphic enzymes, or
99     polymorphic proteins.
100          (3) (a) In accordance with Section 63G-2-305, [all DNA specimens received shall be]
101     each DNA specimen received is classified as protected.
102          (b) The [Department of Public Safety] department may not transfer or disclose any
103     DNA specimen, physical evidence, or criminal identification information obtained, stored, or
104     maintained under this section, except under [its] the provisions of this section.
105          (4) Notwithstanding Subsection 63G-2-202(1), the department may deny inspection if
106     [it] the department determines that there is a reasonable likelihood that the inspection would
107     prejudice a pending criminal investigation.
108          (5) (a) The department shall adopt procedures governing the inspection of [records,
109     DNA specimens, and challenges to the accuracy of records] a record, a DNA specimen, and a
110     challenge to the accuracy of a record.
111          (b) The procedures described in Subsection (5)(a) shall accommodate the need to
112     preserve [the materials] material from contamination and destruction.
113          (6) A person whose DNA specimen [has been] is obtained under this part may,
114     personally or through a legal representative, submit:
115          (a) to the court a motion for a court order requiring the destruction of the person's DNA
116     specimen and any criminal identification record created in connection with that specimen if:
117          [(a)] (i) a final judgment reverses the conviction, judgment, or order that created an
118     obligation to provide a DNA specimen; or
119          (ii) all charges arising from the same criminal episode for which the DNA specimen
120     was obtained under Subsection 53-10-404.5(1)(a) have been resolved by a final judgment of
121     dismissal or acquittal; [and] or
122          [(b) the department determines that the person has not otherwise become obligated to
123     submit a DNA specimen as a result of any separate conviction or juvenile adjudication for any
124     offense listed in Subsection 53-10-403(2).]
125          (b) to the department a request for the destruction of the person's DNA specimen and
126     removal of the person's DNA specimen and DNA records from the database described in
127     Subsection (1)(d) if:
128          (i) no charge arising from the same criminal episode for which the DNA specimen was
129     obtained under Subsection 53-10-404.5(1)(a) is filed against the person within one year after
130     the day on which the person is booked; or
131          (ii) all charges arising from the same criminal episode for which the DNA specimen
132     was obtained under Subsection 53-10-404.5(1)(a) have been resolved by a final judgment of
133     dismissal with prejudice or acquittal.
134          (7) A court order issued under Subsection (6)(a) may be accompanied by a written
135     notice to the person advising that state law provides for expungement of criminal charges if the
136     charge is resolved by a final judgment of dismissal or acquittal.
137          (8) [Upon receipt of] The department shall destroy the person's DNA specimen, all
138     physical evidence obtained from the person's DNA specimen, and all criminal identification
139     records related to the person, if:
140          (a) the person provides the department with:
141          (i) a court order for destruction [pursuant to] described in Subsection [(6) and receipt
142     of] (6)(a); and
143          (ii) a certified copy of:
144          (A) the court order reversing the conviction, judgment, or order[, a certified copy of];
145          (B) a court order to set aside the conviction[, or a certified copy of]; or
146          (C) the dismissal or acquittal of the charge regarding which the person was arrested[,
147     the Department of Public Safety shall destroy any specimen received from the person, any
148     physical evidence obtained from that specimen, and any criminal identification records
149     pertaining to the person, unless prohibited under Subsection (6)(b).]; and
150          (b) the department determines that the person has not otherwise become obligated to
151     submit a DNA specimen as a result of any separate conviction or juvenile adjudication for any
152     offense listed in Subsection 53-10-403(2).
153          (9) The department shall destroy a person's DNA specimen and remove the person's
154     DNA sample and DNA records from the database described in Subsection (1)(d), if:
155          (a) the person provides the department with:
156          (i) a written request for destruction of the DNA specimen and removal of the DNA
157     sample and DNA records described in Subsection (6)(b); and
158          (ii) a certified copy of:
159          (A) a declination to prosecute from the prosecutor; or
160          (B) a court document that indicates all charges have been resolved by a final judgment
161     of dismissal with prejudice or acquittal; and
162          (b) the department determines that the person is not obligated to submit a DNA
163     specimen as a result of a separate conviction or juvenile adjudication for an offense listed in
164     Subsection 53-10-403(2).
165          [(9)] (10) The department:
166          (a) is not required to destroy any item of physical evidence obtained from a DNA
167     specimen if evidence relating to another person subject to the provisions of Sections 53-10-404
168     and 53-10-405 would as a result be destroyed[.]; and
169          (b) may not destroy a person's DNA specimen or remove a person's DNA sample and
170     DNA records from the database described in Subsection (1)(d) if the person has a prior
171     conviction or a pending charge for which collection of a sample is authorized in accordance
172     with Section 53-10-404.
173          [(10)] (11) A DNA specimen, physical evidence, or criminal identification record may
174     not be affected by an order to set aside a conviction, except under the provisions of this section.
175          [(11)] (12) If funding is not available for analysis of any of the DNA specimens
176     collected under this part, the bureau shall store the collected specimens until funding is made
177     available for analysis through state or federal funds.
178          [(12)] (13) (a) (i) A person who, due to the person's employment or authority, has
179     possession of or access to individually identifiable DNA information contained in the state
180     criminal identification database or the state DNA specimen repository may not willfully
181     disclose the information in any manner to any individual, agency, or entity that is not entitled
182     under this part to receive the information.
183          (ii) A person may not willfully obtain individually identifiable DNA information from
184     the state criminal identification database or the state DNA repository other than as authorized
185     by this part.
186          (iii) A person may not willfully analyze a DNA specimen for any purpose, or to obtain
187     any information other than as required under this part.
188          (iv) A person may not willfully fail to destroy or fail to ensure the destruction of a
189     DNA specimen when destruction is required by this part or by court order.
190          (b) (i) A person who violates Subsection [(12)] (13)(a)(i), (ii), or (iii) is guilty of a third
191     degree felony.
192          (ii) A person who violates Subsection [(12)] (13)(a)(iv) is guilty of a class B
193     misdemeanor.
194          Section 3. Appropriation.
195          The following sums of money are appropriated for the fiscal year beginning July 1,
196     2019, and ending June 30, 2020. These are additions to amounts previously appropriated for
197     fiscal year 2020. Under the terms and conditions of Title 63J, Chapter 1, Budgetary Procedures
198     Act, the Legislature appropriates the following sums of money from the funds or accounts
199     indicated for the use and support of the government of the state of Utah.
200     ITEM 1
201          To the Department of Public Safety -- Public Safety Programs and Operations
202               From General Fund, Ongoing
$450,000

203               Schedule of Programs:
204                    CITS State Crime Labs                    $450,000
205          The Legislature intends that the use of these funds is limited to the costs of obtaining,
206     analyzing, and destroying DNA samples as well as maintaining a criminal identification
207     database as these tasks are described in Title 53, Chapter 10, Part 4, Bureau of Forensic
208     Services.