HB 1258

HB 1258-FN - AS INTRODUCED

AN ACT relative to post-conviction DNA testing.

SPONSORS: Rep. Lasky, Hills 33; Rep. Clemons, Hills 31; Rep. Craig, Hills 38

This bill permits a person to petition the court for post-conviction DNA testing of biological material under certain circumstances.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT relative to post-conviction DNA testing.

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

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 purposes 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, or hair follicle sample provided by any person or submitted to the division for analysis or storage or both.

I. A person in custody pursuant to the judgment of court may, at any time after conviction or adjudication as a delinquent, apply to the court for forensic DNA testing of any biological material that:

(a) Is related to the investigation or prosecution that resulted in the judgment;

(b) Is in the actual or constructive possession of this state or the United States or has been retained by any other person under conditions sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any respect material to the DNA testing; and

(c) Was not previously subjected to DNA testing, or can be subjected to retesting with different DNA techniques that provide a reasonable probability of reliable and probative results.

II. The court shall notify the office of the United States attorney for the district of New Hampshire of an application made under this section and shall afford them an opportunity to respond. Upon receiving notice of an application made under this section, the United States Attorney for the district of New Hampshire shall take such steps as are necessary to ensure that any remaining biological material that was obtained in connection with the case or investigation is preserved pending the completion of proceedings under this section.

III. The court shall order DNA testing pursuant to an application made under this section upon a determination that testing may produce non-cumulative evidence materially relevant to the claim of the applicant that the applicant was wrongfully convicted, wrongfully adjudicated as a delinquent, or wrongfully sentenced.

IV. The cost of DNA testing ordered under this section shall be paid by the applicant, or by the state, if the applicant is indigent as determined by the court. The court may appoint counsel for an indigent applicant under this section.

V.(a) If the results of DNA testing conducted under this section are unfavorable to the applicant, the court shall dismiss the application.

(b) In addition to any other substantive or procedural remedies provided by applicable law, if the results of DNA testing conducted under this section are favorable to the applicant, the court shall order a hearing and shall enter any order that serves the interests of justice, including an order vacating and setting aside the judgment, discharging the applicant if the applicant is in custody, resentencing the applicant, or granting a new trial.

VI. Nothing in this chapter shall be construed to limit the circumstances under which a person may obtain DNA testing or other post-conviction relief under any other provision of state or federal law.

651-C:3 Preservation of Biological Material for DNA Testing. The state shall preserve any biological material obtained in connection with a criminal or delinquency investigation or prosecution for 5 years, or as long as any person connected with that case or investigation remains in custody, whichever is longer.

I. A person in custody pursuant to the judgment of the court may, at any time after conviction or adjudication as a delinquent, produce evidence establishing his or her actual innocence of the crime of conviction or the adjudication as a delinquent, and apply to the court that entered the judgment convicting the person or adjudicating the person as a delinquent for a hearing on his or her claim of actual innocence.

II. The court may hold a hearing on the application and may order scientific or forensic testing on evidence as appropriate.

III. In addition to any other substantive or procedural remedies provided by applicable law, if the applicant establishes his or her innocence of the crime of conviction or the adjudication as a delinquent, the court shall order a hearing and shall enter any order that serves the interests of justice, including an order vacating and setting aside the judgment, discharging the applicant if the applicant is in custody, resentencing the applicant, or granting a new trial.

I. The DNA testing and analysis under this chapter shall be performed under the direction of the division, following procedures in conformance with the federal "DNA Identification Act of 1991". Identifying characteristics of the resulting DNA profile shall be stored and maintained by the division in a DNA database compatible with the CODIS system.

II. The division shall prescribe procedures compatible with the FBI'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 chapter.

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

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

I. It shall be the duty of the division to receive blood samples and to analyze, classify, and store the DNA records of blood samples submitted pursuant to this chapter, 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.

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 shall create a separate statistical database comprised of DNA records of persons whose identities are unknown. Nothing in this chapter 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:7 Unauthorized Dissemination or Use of DNA Database Information; Obtaining Blood Samples Without Authority; Penalties. 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 chapter, 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.

651-C:8 Expungement of DNA Database Records Upon Reversal or Dismissal of Conviction. 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.

AN ACT relative to post-conviction DNA testing.

The Office of Legislative Budget Assistant is unable to complete a fiscal note for this bill as it is awaiting information from an agency.