2013 -- S 0041

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LC00140

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO CRIMINAL PROCEDURE -- DNA DETECTION OF SEXUAL AND

VIOLENT OFFENDERS

     Introduced By: Senators Bates, Walaska, McCaffrey, Hodgson, and Algiere

     Date Introduced: January 16, 2013

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 12-1.5-1, 12-1.5-2, 12-1.5-4, 12-1.5-7, 12-1.5-8, 12-1.5-13, and

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12-1.5-17 of the General Laws in Chapter 12-1.5 entitled "DNA Detection of Sexual and Violent

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Offenders" are hereby amended to read as follows:

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     12-1.5-1. Policy. [Contingent amendment; see other version] -- The general assembly

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finds and declares that DNA databanks and DNA databases are important tools in criminal

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investigations, in the exclusion of individuals who are the subject of criminal investigations or

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prosecutions, and in deterring and detecting recidivism. Many states have enacted laws requiring

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persons arrested for or convicted of a crime of violence, or persons convicted of any felony,

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sexual and violent offenses to provide genetic samples for DNA profiling. Moreover, it is the

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policy of this state to assist federal, state and local criminal justice and law enforcement agencies

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in the identification and detection of individuals in criminal investigations. It is therefore in the

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best interest of the state to establish a DNA databank and a DNA database containing DNA

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samples and DNA records of individuals arrested for any crime of violence as defined in section

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12-1.5-2, or convicted of any felony, of certain sexual and violent offenses, or convicted of any

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felony as defined in the general laws of Rhode Island, and missing persons.

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     12-1.5-1. Policy. [Contingent effective date; see note.] -- The general assembly finds

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and declares that DNA databanks and DNA databases are important tools in criminal

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investigations, in the exclusion of individuals who are the subject of criminal investigations or

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prosecutions, and in deterring and detecting recidivism. Many states have enacted laws requiring

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persons arrested for or convicted of a crime of violence as defined in section 12-1.5-2 sexual and

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violent offenses to provide genetic samples for DNA profiling. Moreover, it is the policy of this

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state to assist federal, state, and local criminal justice and law enforcement agencies in the

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identification and detection of individuals in criminal investigations. It is in the best interest of the

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state to establish a DNA databank and a DNA database containing DNA samples and DNA

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records of individuals arrested for any crime of violence as defined in section 12-1.5-2 or

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convicted of any felony, a crime of violence as defined in section 11-47-2, or convicted of any

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felony as defined in the general laws of Rhode Island, and missing persons.

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     12-1.5-2. Definitions. -- For the purposes of this chapter:

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      (1) "CODIS" is derived from combined DNA index system, the Federal Bureau of

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Investigation's national DNA identification index system that allows the storage and exchange of

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DNA records submitted by state and local forensic DNA laboratories;

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      (2) "DNA" means deooxyribonucleic acid, which is located in the cells of the body and

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provides an individual's personal genetic blueprint. DNA encodes genetic information that is the

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basis of human hereditary and forensic identification;

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      (3) "DNA record" means DNA identification information only, which is stored in the

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state DNA database or the combined DNA index system for the purpose of generating

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investigative leads or supporting statistical interpretation of DNA test results. The DNA record is

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the result obtained from the DNA typing tests. The DNA record is comprised of the

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characteristics of a DNA sample which are of value only in establishing the identity of

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individuals. The DNA record, however, does not include the DNA sample, and the DNA record

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may never include the results of tests of any structural genes. The results of all DNA

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identification tests on an individual's DNA sample are also collectively referred to as the DNA

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profile of an individual;

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      (4) "DNA sample" means a blood or tissue sample provided by any person with respect

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to offenses covered by this chapter, or submitted to the department of health laboratory pursuant

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to this chapter for DNA analysis or storage, or both;

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      (5) "F.B.I." means the Federal Bureau of Investigation;

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      (6) "State DNA databank" means the repository of DNA samples collected under this

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chapter, which is administered by the department of health; and

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      (7) "State DNA database" means the state-level DNA identification record system to

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support law enforcement which is administered by the department of health and which provides

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DNA records to the F.B.I. for storage and maintenance in CODIS. It is the collective capability to

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store and maintain DNA records related to forensic casework, the DNA records of those arrested

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for crimes of violence as defined in section 12-1.5-2 and/or convicted offenders required to

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provide a DNA sample under state law, and anonymous DNA records used for research, quality

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control, and other DNA analysis support systems.

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     (8) "Crimes of violence" include murder, manslaughter, first degree arson, kidnapping

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with intent to extort, robbery, larceny from the person, first degree sexual assault, second degree

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sexual assault, first and second degree child molestation, assault with intent to murder, assault

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with intent to rob, assault with intent to commit first degree sexual assault, burglary, and entering

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a dwelling house with intent to commit murder, robbery, sexual assault, or larceny.

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     12-1.5-4. State DNA database. -- There is established the state DNA database. It shall be

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administered by the department of health and provide DNA records for the F.B.I. for storage and

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maintenance by CODIS. The state DNA database shall have the capability provided by computer

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software and procedures administered by the department of health to store and maintain DNA

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records related to:

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      (1) Forensic casework, including the identification of missing persons;

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      (2) Individuals arrested for any crime of violence as defined in section 12-1.5-2 and

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convicted Convicted felony offenders required to provide a DNA sample under this chapter; and

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      (3) Anonymous DNA records used for research on identification technologies or quality

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control.

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     12-1.5-7. Scope and applicability. [Contingent amendment; see other version] -- For

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law enforcement purposes, this chapter is applicable to adult persons arrested for crimes of

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violence as defined in section 12-1.5-2 and/or convicted to a period of probation for any of the

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following offenses: sections 11-37-2, 11-37-4, 11-37-8, 11-37-8.1, 11-37-8.3, 11-23-1 and 11-23-

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3, and for of any felony as defined in the general laws of Rhode Island in this chapter.

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     12-1.5-7. Scope and applicability. [Contingent effective date; see note.] -- For law

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enforcement purposes, this chapter is applicable to adult persons arrested for any crime of

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violence as defined in section 12-1.5-2 and/or convicted of or sentenced to a period of probation

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for any of the following offenses: sections 11-37-2, 11-37-4, 11-37-8, 11-37-8.1, 11-37-8.3, 11-

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23-1, and 11-23-3, for any crime of violence as defined in section 11-47-2 for offenses committed

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after July 1, 2001, and for any felony as defined in the general laws of Rhode Island for any

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felony.

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     12-1.5-8. DNA sample required upon convictionDNA sample required upon arrest

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or conviction for any crime of violence. -- (a) Every person arrested for a crime of violence as

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defined in section 12-1.5-2, who pleads guilty or nolo contendere, or is convicted of an offense as

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listed in section 12-1.5-7 after June 29, 1998, any felony shall have a DNA sample taken for

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analysis as follows:

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      (1) Every person who is sentenced to a term of confinement to prison, for an offense as

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listed in section 12-1.5-7 any crime of violence as defined in section 12-1.5-2 or any felony shall

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not be released prior to the expiration of his or her maximum term of confinement unless and

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until a DNA sample has been taken;

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      (2) Every person convicted of an offense or sentenced to probation as listed in section

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12-1.5-7 any crime of violence as defined in section 12-1.5-2 or any felony or who is sentenced

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thereon to any term of probation, or whose case is referred to a diversion program or upon whose

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case sentencing is deferred shall have a DNA sample taken for analysis by the department of the

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health as a condition for of any sentence which disposition will not involve an intake into prison.

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     (b) Every person arrested for any crime of violence as defined in section 12-1.5-2 shall, at

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the time of booking, have a DNA sample taken for analysis and included in the Rhode Island

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DNA database and DNA databank respectively as required by this chapter and every such person

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shall be notified of his or her expungement rights under section 12-1.5-13 at or near the time the

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DNA sample is taken.

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      (c)(b) All DNA samples taken pursuant to this section shall be taken in accordance with

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regulations promulgated by the department of health.

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     (d) The director of the department of health shall promulgate rules and regulations

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governing the periodic review of the DNA identification database to determine whether or not the

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database contains DNA profiles that should not be in the database, including the steps necessary

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to expunge any profiles which the department determines should not be in the database.

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     (e) The requirements of this chapter are mandatory. In the event that an arrestee’s DNA

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sample is not adequate for any reason, the arrestee shall provide another DNA sample for

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analysis.

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     (f) A sample dues does not need to be collected if the person has previously provided a

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sample sufficient for DNA testing pursuant to the provisions of this section.

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     12-1.5-13. Expungement. -- (a) A person whose DNA record or profile has been

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included in the databank pursuant to this act may request expungement, on the grounds that the

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conviction on which authority for including that person's DNA record or profile was based, has

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been reversed. The department of health shall purge all records and identifiable information in the

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database pertaining to the person and destroy all samples from the person upon receipt of a

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written request for expungement pursuant to this section and a certified copy of the final court

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order reversing the conviction. The department of health shall purge and destroy all records and

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identifiable information in its database and all DNA samples taken pursuant to this chapter from

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convicted persons upon official proof that the person has been deceased for a period of at least

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three (3) years. Official proof shall include, but not be limited to, a certified copy of a death

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certificate.

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     (b) Upon receipt of a written request for expungement from the person whose DNA

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record or profile has been included in the database pursuant to this chapter and notification of the

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underlying case not being charged through information or indictment, or voluntary dismissal by

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the state, or dismissal by a court, or by a not guilty verdict after trial, or upon the vacating or the

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reversal of a conviction in which the state does not retry the defendant or appeal the decision, or

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loses such appeal upon hearing, or upon any plea or conviction of a lesser offense that would not

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give rise to the mandatory sampling of the individual’s DNA, or upon the completion of a

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program of diversion or the completion of the term of a sentence of deferment, or of the granting

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of a pardon, the record or profile shall be expunged from the state DNA identification database,

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regardless of any prior record for which DNA sampling would not have been authorized, except

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pursuant to subsection (e), herein and such individual may apply to the court for an order

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directing the expungement of their DNA record and any samples, analyses, or other documents

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relating to the DNA testing of such individual in connection with the investigation, arrest and/or

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prosecution of the crime which resulted in the arrest of the person.

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     (c) A copy of the expungement motion shall be served on the attorney general and the

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arresting police department with ten (10) days notice prior to hearing, and an order directing

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expungement shall be granted if the court finds any of the appropriate conditions of subsection

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(b) are satisfied; or in the case of a mistrial or dismissal of such charges by the court, that all

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appeals relating to the charges have been concluded; that such individual will not be retried, or if

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a retrial has occurred, the trier of fact has rendered a verdict of complete acquittal of the charges

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that gave rise to the requirement to collect the DNA sample.

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     (d) The department of health shall, by rule or regulation, prescribe procedures to ensure

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that the DNA record in the state DNA identification database, and any samples, analyses, or other

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documents relating to such record, whether in the possession of the division, or any law

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enforcement or police agency, or any forensic DNA laboratory, including any duplicates or

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copies thereof are destroyed, including any records from CODIS. The director of health shall also

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adopt by rule and regulation a procedure for the expungement in other appropriate circumstances

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of DNA records contained in the database.

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     (e) No expungement shall be granted where an individual has a prior conviction requiring

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a DNA sample, or a pending charge for which collection of a sample was authorized pursuant to

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the provisions of this chapter.

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     (f) The detention, arrest, or conviction of a person based upon a database match or

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database information is not invalidated if it is determined that the sample was obtained or placed

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in the database by mistake. Any identification, warrant, or probable cause to arrest based upon a

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database match is not invalidated due to a failure to expunge or a delay in expunging records.

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     12-1.5-17. Convicted persons -- Refusal to give DNA sampleBailed and convicted

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persons – Refusal to give DNA sample. -- Any person who is required to have a DNA sample

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taken after having been arrested and charged with any crime of violence as defined in section 12-

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1.5-2 or convicted of any felony, who refuses to do so, and who knowingly violently resists the

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taking of a DNA sample duly authorized by medical personnel, shall be in violation of the terms

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of his or her release, regardless of whether or not the term was a special condition of his or her

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bail, release on probation, parole, or home confinement or other form of supervised release.

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     SECTION 2. Chapter 12-1.5 of the General Laws entitled "DNA Detection of Sexual and

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Violent Offenders" is hereby amended by adding thereto the following section:

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     12-1.5-19. Limitation on liability. -- Persons authorized to collect DNA samples shall

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not be civilly or criminally liable for the collection of a DNA sample pursuant to this chapter if

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they perform these duties in good faith and in a reasonable manner according to generally

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accepted medical or other professional practices.

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     SECTION 3. This act shall take effect on January 1, 2014.

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LC00140

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO CRIMINAL PROCEDURE -- DNA DETECTION OF SEXUAL AND

VIOLENT OFFENDERS

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     This act would require the collection of DNA samples for any person arrested for a crime

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of violence as defined in this act or any felony. This act would expand the list of crimes for which

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a DNA sample is required. The samples would be included in the Rhode Island DNA database to

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be administered by the FBI’s national DNA identification index system, which allows for the

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storage and exchange of DNA records submitted by state and local forensic DNA laboratories for

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the identification and/or exclusion of individuals who are the subject of criminal investigations or

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prosecutions.

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     This act would take effect on January 1, 2014.

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LC00140

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