hb 0768

CHAPTER 183

HB 768-FN - FINAL VERSION

AN ACT relative to DNA testing of criminal offenders.

SPONSORS: Rep. Kennedy, Merr 7; Rep. Weatherspoon, Rock 20; Rep. L. Christiansen, Hills 23

This bill provides for DNA testing of criminal offenders including perpetrators of sexual assault and violent crimes including homicide, manslaughter, assault, felony arson, kidnapping, robbery, and felony burglary for inclusion in the national DNA database.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT relative to DNA testing of criminal offenders.

Be it Enacted by the Senate and House of Representatives in General Court convened:

183:1 New Chapter; DNA Testing of Criminal Offenders. Amend RSA by inserting after chapter 651-B the following new chapter:

I. "CODIS" means the Combined DNA Index System, the FBI's national DNA identification index system.

V. "DNA record" means the DNA identification information stored in the state DNA database or CODIS for the purpose of generating investigative leads or supporting statistical interpretation of DNA test results. The DNA record is the objective form of the DNA analysis test and may include numerical representation of DNA fragment lengths, digital images of autoradiographs, discrete allele assignment numbers, and similar characteristics obtained from a DNA sample which are of value in establishing the identity of individuals. A DNA record may not specify the presence, absence, or alteration of any gene or chromosome.

VI. "DNA sample" means a blood, tissue, hair follicle, or other biological sample provided by any person or submitted to the division pursuant to this subdivision for analysis or storage or both.

VIII.(a) "Sexual offender" means a person who has been convicted of any violation of:

(2) A law of another state or the federal government reasonably equivalent to a violation listed in subparagraph (1).

(b) "Sexual offender" also means a juvenile who has been found delinquent because of actions which, if the juvenile were an adult, would be crimes under RSA 632-A:2, 632-A:3, or 632-A:4. In the case of a juvenile offender, a DNA sample shall be provided prior to the juvenile's eighteenth birthday, or in the case of a person sentenced under RSA 169-B:4, prior to such person's nineteenth birthday.

IX. "Violent crime" means a capital, first degree, or second degree murder, attempted murder, manslaughter, first degree assault, second degree assault, felony arson, kidnapping, robbery, felony burglary, or negligent homicide committed in consequence of being under the influence of intoxicating liquor or controlled drugs, as these crimes are defined by statute.

I. Upon intake or prior to the release of any offender after conviction for the commission of any offense defined in RSA 651-C:1, VIII or IX, or commission of a similar offense prohibited by federal law or the laws of another state, whether on probation, conditional or unconditional release, completion of sentence, or release for any other reason, or prior to the release of any juvenile offender after a finding of delinquency, such person shall have a DNA sample taken for DNA analysis to determine identification characteristics specific to the person.

II. The analysis shall be performed under the direction of the division, following procedures in conformance with the federal "DNA Identification Act of 1994". Identifying characteristics of the resulting DNA profile shall be stored by the division in a DNA database compatible with and maintained by the CODIS system. Information in the database shall be made available only as provided in RSA 651-C:3.

III. The division shall prescribe procedures compatible with the Federal Bureau of Investigation's requirements for the CODIS program, to be used in the collection, submission, identification, analysis, storage, and disposition of DNA samples and DNA records obtained pursuant to this subdivision.

IV. The division may contract with third parties for the purposes of this subdivision. Any DNA sample sent to third parties for analysis shall be coded to maintain confidentiality concerning the donor of the sample.

V. A certificate and the results of the analysis shall be admissible in any court as evidence of the facts stated in the analysis.

VI. A law enforcement officer may use such means as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate in the collection of a sample.

VII. If the initial DNA sample collected from an individual is found to be deficient, a new sample shall be collected.

VIII. Any person required under this chapter to submit a DNA sample, including a juvenile offender who is required to submit a DNA sample prior to the juvenile's eighteenth birthday, who knowingly refuses to submit such sample for a period of 30 days after receiving notice from the division, the department of corrections, probation, parole, or other authorized representative of law enforcement shall be guilty of a class A misdemeanor.

IX. Any entry into the database which is found to be erroneous shall not prohibit law enforcement officials from the legitimate use of the information in the furtherance of a criminal investigation.

X. Any authorized individual collecting a DNA sample shall be immune from civil liability, provided such person acts with reasonable care under the circumstances.

I. It shall be the duty of the division to receive DNA samples and to analyze, classify, and store the DNA records of DNA samples submitted pursuant to this subdivision, and to make such information available to federal, state, and local law enforcement officers upon request made in furtherance of an official investigation of any criminal offense. Such law enforcement officers shall use such information only for the purposes of criminal investigations and prosecutions, or as necessary to the functions of an office of chief medical examiner. A request may be made by personal contact, mail, or electronic means. The name of the person making the request and the purpose for which the information is requested shall be maintained on file with the division. The information contained in the database shall not be a public record for the purposes of RSA 91-A, and shall not be available for inspection by any unauthorized individual.

II. The commissioner of the department of safety shall adopt rules under RSA 541-A to govern the methods of obtaining information from the state DNA database and CODIS and procedures for verification of the identity and authority of the requester.

III. Upon request, a copy of the request for a search shall be furnished to any person identified and charged with an offense as the result of a search of information in the database. Only when a sample or DNA record supplied by the person making the request satisfactorily matches a profile in the database shall the existence of data in the database be confirmed or identifying information from the database be disseminated.

IV. The division may create a separate statistical database comprised of DNA records of persons whose identities are unknown. Nothing in this subdivision shall prohibit the department from sharing or otherwise disseminating the information in the statistical database with law enforcement or criminal justice agencies within or without the state.

651-C:4 Unauthorized Dissemination or Use of DNA Database Information; Obtaining DNA Samples Without Authority; Penalties.

I. Any person who, without authority, disseminates information contained in the DNA database shall be guilty of a class B misdemeanor. Any person who disseminates, receives, or otherwise uses or attempts to use information in the database, knowing that such dissemination, receipt, or use is for a purpose other than as authorized by the provisions of this subdivision, shall be guilty of a class A misdemeanor. Except as authorized by law, any person who, for purposes of having a DNA analysis performed, obtains or attempts to obtain any sample submitted to the forensic science laboratory for analysis shall be guilty of a class B felony.

II. The division may use DNA samples for forensic validation and forensic protocol development, provided that all personally identifying information shall be removed and shall not be used.

III. The department and its employees shall not be liable for the erroneous collection and entry of a DNA sample into the database where the collection and entry were made in good faith reliance that the individual was convicted of a qualifying offense under RSA 651-C:2, I.

651-C:5 Expungement of DNA Database Records Upon Reversal or Dismissal of Conviction.

I. A person whose DNA record has been included in the database pursuant to this chapter may request expungement on the grounds that the criminal conviction on which the authority for including such person's DNA record was based has been reversed and the case dismissed. The department 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 court order reversing and dismissing the conviction.

II. The DNA record of any juvenile sexual offender shall be maintained in the database and shall not be automatically expunged from the database upon that individual's reaching the age of adulthood.

651-C:6 Cost. The court, upon conviction, may order the offender to pay the cost of testing. The court shall include a statement describing the responsibility for the cost of testing in the sentencing order.

I. The provisions of this chapter shall apply to those persons convicted of a violent crime, as defined in RSA 651-C:1, IX, on or after July 1, 2003, and to persons incarcerated in a state or county correctional facility, or on probation or parole, for a violent crime as defined in RSA 651-C:1, IX, on or after July 1, 2003.

II. The provisions of this chapter shall apply to those persons convicted of a sexual offense, as defined in RSA 651-C:1, VIII, on or after August 2, 1996, and to persons incarcerated in a state or county correctional facility for a sexual offense as defined in RSA 651-C:1, VIII, on or after August 2, 1996.

183:2 Repeal. RSA 632-A:20 through 632-A:24, relative to DNA testing of sexual offenders, is repealed.