1     
FORENSIC DNA RETENTION AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Stephanie Pitcher

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill concerns the destruction of DNA specimens from individuals booked for
10     certain alleged offenses.
11     Highlighted Provisions:
12          This bill:
13          ▸     for certain alleged offenses, requires the Bureau of Forensic Services:
14                •     if criminal charges are not filed against an individual within 90 days after
15     booking, to destroy the DNA specimen obtained from the individual within a
16     specified time period; and
17               •     to notify the individual that the individual's DNA specimen was destroyed;
18          ▸     establishes a procedure for an individual whose DNA specimen is obtained as part
19     of booking for certain alleged offenses to submit a motion for a court order
20     requiring the destruction of the individual's DNA specimen; and
21          ▸     makes technical changes.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          None
26     Utah Code Sections Affected:
27     AMENDS:
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 53-10-406 is amended to read:
32          53-10-406. DNA specimen analysis -- Bureau responsibilities.
33          (1) The bureau shall:
34          (a) administer and oversee the DNA specimen collection process;
35          (b) store all DNA specimens received and other physical evidence obtained from
36     analysis of [those] the DNA specimens;
37          (c) analyze the DNA specimens to establish the genetic profile of the donor or to
38     otherwise determine the identity of persons or contract with other qualified public or private
39     laboratories to conduct the analysis;
40          (d) maintain a criminal identification data base containing information derived from
41     DNA analysis;
42          (e) utilize the DNA specimens to create statistical population frequency data bases,
43     provided that genetic profiles or other information in a population frequency data base may not
44     be identified with specific individuals;
45          (f) ensure that the DNA identification system does not provide information allowing
46     prediction of genetic disease or predisposition to illness;
47          (g) ensure that only DNA markers routinely used or accepted in the field of forensic
48     science are used to establish the gender and unique individual identification of the donor;
49          (h) utilize only those DNA analysis procedures that are consistent with, and do not
50     exceed, procedures established and used by the Federal Bureau of Investigation for the forensic
51     analysis of DNA;
52          [(i) destroy a DNA specimen obtained under this part if criminal charges have not been
53     filed within 90 days after booking for an alleged offense under Subsection 53-10-403(2)(c);
54     and]
55          (i) (i) destroy within 30 calendar days after the day on which the 90-day period expires
56     the DNA specimen obtained from the individual under this part if criminal charges are not filed
57     within 90 days after the day on which an individual is booked for an alleged offense under
58     Subsection 53-10-403(2)(c); and
59          (ii) notify the individual that the individual's DNA specimen obtained under this part
60     has been destroyed within 10 business days after the day on which the DNA specimen is
61     destroyed, including the date of the destruction; and
62          (j) make rules in accordance with Title 63G, Chapter 3, Utah Administrative
63     Rulemaking Act, establishing procedures for obtaining, transmitting, and analyzing DNA
64     specimens and for storing and destroying DNA specimens and other physical evidence and
65     criminal identification information obtained from the analysis.
66          (2) Procedures for DNA analysis may include all techniques which the [Department of
67     Public Safety] department determines are accurate and reliable in establishing identity,
68     including [but not limited to,] analysis of DNA, antigen antibodies, polymorphic enzymes, or
69     polymorphic proteins.
70          (3) (a) In accordance with Section 63G-2-305, [all DNA specimens received shall be]
71     each DNA specimen received is classified as protected.
72          (b) The [Department of Public Safety] department may not transfer or disclose any
73     DNA specimen, physical evidence, or criminal identification information obtained, stored, or
74     maintained under this section, except under [its] the provisions of this section.
75          (4) Notwithstanding Subsection 63G-2-202(1), the department may deny inspection if
76     [it] the department determines that there is a reasonable likelihood that the inspection would
77     prejudice a pending criminal investigation.
78          (5) (a) The department shall adopt procedures governing the inspection of [records,
79     DNA specimens, and challenges to the accuracy of records] a record, a DNA specimen, and a
80     challenge to the accuracy of a record.
81          (b) The procedures described in Subsection (5)(a) shall accommodate the need to
82     preserve [the materials] material from contamination and destruction.
83          (6) [A person] An individual whose DNA specimen [has been] is obtained under this
84     part may, personally or through a legal representative, submit to the court a motion for a court
85     order requiring the destruction of the [person's] individual's DNA specimen and any criminal
86     identification record created in connection with that specimen if:
87          (a) (i) a final judgment reverses the conviction, judgment, or order that created an
88     obligation to provide a DNA specimen; [or]
89          (ii) all charges arising from the same criminal episode for which the DNA specimen
90     was obtained under Subsection 53-10-404.5(1)(a) have been resolved by a final judgment of
91     dismissal or acquittal; [and] or
92          (iii) criminal charges are not filed within 90 calendar days after the day on which the
93     individual is booked for an alleged offense under Subsection 53-10-403(2)(c), 140 calendar
94     days have passed since the day on which the individual is booked, and the individual has not
95     received the notice described in Subsection (1)(i)(ii); and
96          (b) the department determines that the [person] individual has not otherwise become
97     obligated to submit a DNA specimen as a result of any separate conviction or juvenile
98     adjudication for any offense listed in Subsection 53-10-403(2).
99          (7) A court order issued under Subsection (6) may be accompanied by a written notice
100     to the [person] individual advising that state law provides for expungement of criminal charges
101     if the charge is resolved by a final judgment of dismissal or acquittal.
102          (8) Upon receipt of a court order for destruction [pursuant to] under Subsection (6)
103     and, if applicable under Subsection (6)(a), receipt of a certified copy of the court order
104     reversing the conviction, judgment, or order, a certified copy of a court order to set aside the
105     conviction, or a certified copy of the dismissal or acquittal of the charge regarding which the
106     [person] individual was arrested, the [Department of Public Safety] department shall destroy
107     any DNA specimen received from the [person] individual, any physical evidence obtained from
108     that DNA specimen, and any criminal identification records pertaining to the [person]
109     individual, unless prohibited under Subsection (6)(b).
110          (9) The department is not required to destroy any item of physical evidence obtained
111     from a DNA specimen if evidence relating to another [person] individual subject to the
112     provisions of Sections 53-10-404 and 53-10-405 would as a result be destroyed.
113          (10) A DNA specimen, physical evidence, or criminal identification record may not be
114     affected by an order to set aside a conviction, except under the provisions of this section.
115          (11) If funding is not available for analysis of any of the DNA specimens collected
116     under this part, the bureau shall store the collected specimens until funding is made available
117     for analysis through state or federal funds.
118          (12) (a) (i) A person who, due to the person's employment or authority, has possession
119     of or access to individually identifiable DNA information contained in the state criminal
120     identification database or the state DNA specimen repository may not willfully disclose the
121     information in any manner to any individual, agency, or entity that is not entitled under this
122     part to receive the information.
123          (ii) A person may not willfully obtain individually identifiable DNA information from
124     the state criminal identification database or the state DNA repository other than as authorized
125     by this part.
126          (iii) A person may not willfully analyze a DNA specimen for any purpose, or to obtain
127     any information other than as required under this part.
128          (iv) A person may not willfully fail to destroy or fail to ensure the destruction of a
129     DNA specimen when destruction is required by this part or by court order.
130          (b) (i) A person who violates Subsection (12)(a)(i), (ii), or (iii) is guilty of a third
131     degree felony.
132          (ii) A person who violates Subsection (12)(a)(iv) is guilty of a class B misdemeanor.