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S. 890
STATUS INFORMATION
General Bill
Sponsors: Senators Malloy, McConnell, Ford, Rankin, Knotts, Cleary, Hawkins, O'Dell, Hayes, Elliott, Cromer and Ceips
Document Path: l:\s-jud\bills\malloy\jud0021.kw.doc
Companion/Similar bill(s): 3304, 4396
Introduced in the Senate on January 8, 2008
Introduced in the House on January 24, 2008
Last Amended on January 22, 2008
Currently residing in the House Committee on Judiciary
Summary: DNA samples
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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12/12/2007 Senate Prefiled
12/12/2007 Senate Referred to Committee on Judiciary
1/8/2008 Senate Introduced and read first time SJ-47
1/8/2008 Senate Referred to Committee on Judiciary SJ-47
1/17/2008 Senate Committee report: Favorable with amendment Judiciary SJ-9
1/18/2008 Scrivener's error corrected
1/22/2008 Senate Committee Amendment Amended and Adopted SJ-6
1/22/2008 Senate Amended SJ-6
1/22/2008 Senate Read second time SJ-6
1/23/2008 Scrivener's error corrected
1/23/2008 Senate Read third time and sent to House SJ-20
1/24/2008 House Introduced and read first time HJ-6
1/24/2008 House Referred to Committee on Judiciary HJ-7
5/14/2008 House Committee report: Favorable with amendment Judiciary HJ-5
5/16/2008 Scrivener's error corrected
5/21/2008 House Requests for debate-Rep(s). Sellers, Crawford, Leach,
Shoopman, JR Smith, Stewart, Hamilton, Limehouse,
Scott, Umphlett, Hart, Bedingfield, Duncan, JH Neal,
Parks, Funderburk, Daning, Jefferson, and Mack HJ-28
5/22/2008 House Requests for debate removed-Rep(s). Limehouse HJ-76
5/22/2008 House Requests for debate removed-Rep(s). JR Smith HJ-98
5/28/2008 House Debate adjourned until Thursday, May 29, 2008 HJ-231
6/3/2008 House Debate interrupted HJ-196
6/5/2008 House Recommitted to Committee on Judiciary HJ-72
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
12/12/2007
1/17/2008
1/18/2008
1/22/2008
1/23/2008
5/14/2008
5/16/2008
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
May 14, 2008
S. 890
Introduced by Senators Malloy, McConnell, Ford, Rankin, Knotts, Cleary, Hawkins, O'Dell, Hayes, Elliott, Cromer and Ceips
S. Printed 5/14/08--H. [SEC 5/16/08 1:55 PM]
Read the first time January 24, 2008.
To whom was referred a Bill (S. 890) to amend Section 23-3-620, Code of Laws of South Carolina, 1976, relating to offenders being required to submit samples for inclusion in the DNA database, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. This act may be cited as the "South Carolina Protection from Violence Against Women and Children Act".
SECTION 2. Chapter 3, Title 23 of the 1976 Code is amended by adding:
"Section 23-3-615. As used in this article:
(A) 'DNA sample' means the tissue, saliva, blood, or any other bodily fluid taken at the time of arrest from which identifiable information can be obtained;
(B) 'DNA profile' means the results of any testing performed on a DNA sample; and
(C) 'DNA record' means the tissue or saliva samples and the results of the testing performed on the samples."
SECTION 3. Section 23-3-620 of the 1976 Code is amended to read:
"Section 23-3-620. (A) Following sentencing and at the time of intake at a jail or prison a lawful custodial arrest, the service of a courtesy summons, or a direct indictment for:
(1) a felony offense or an offense that is punishable by a sentence of five years or more; or
(2) eavesdropping, peeping, or stalking, any of which are committed in this State, a person, except for any juvenile, arrested or ordered by a court must provide a saliva or tissue sample from which DNA may be obtained for inclusion in the State DNA Database must be provided by:. Additionally, any person ordered to do so by a court must provide a saliva or tissue sample from which DNA may be obtained for inclusion in the State DNA Database.
(1) any person convicted or adjudicated delinquent and incarcerated in a state correctional facility on or after July 1, 2004, for:
(a) eavesdropping or peeping (Section 16-17-470); or
(b) any offense classified as a felony in Section 16-1-90 or any other offense that carries a maximum term of imprisonment of five years or more; and
(2) any criminal offender convicted or adjudicated delinquent on or after July 1, 2004, who is ordered by the court to provide a sample.
(B) A convicted offender who is required to provide a DNA sample under subsections (A)(1) or (A)(2) but who is not sentenced to a term of confinement must provide a sample as a condition of his sentence. This sample must be taken at a prison, jail, sheriff's office that serves a courtesy summons, courthouse where a direct presentment indictment is served, or other location as specified by the sentencing court detention facility at the time the person is booked and processed into the jail or detention facility following the custodial arrest, or other location when the taking of fingerprints is required prior to a conviction. The sample must be submitted to SLED as directed by SLED. If appropriately trained personnel are not available to take a sample from which DNA may be obtained, the failure of the arrested person to provide a DNA sample shall not be the sole basis for refusal to release the person from custody. An arrested person who is released from custody before providing a DNA sample must provide a DNA sample at a location specified by the law enforcement agency with jurisdiction over the offense on or before the first court appearance.
(C)(B) At such time as possible and before parole or release Unless a sample has already been provided pursuant to the provisions of subsection (A), before a person may be paroled or released from confinement, the person must provide a suitable sample from which DNA may be obtained for inclusion in the State DNA Database must be provided by:
(1) a person who was convicted or adjudicated delinquent before July 1, 2004, and who was sentenced to and is serving a term of confinement on or after July 1, 2004, for:
(a) eavesdropping or peeping (Section 16-17-470); or
(b) any offense classified as a felony in Section 16-1-90 or any other offense that carries a maximum term of imprisonment of five years or more; and
(2) any criminal offender ordered by the court who was convicted or adjudicated delinquent before July 1, 2004, and who was sentenced to and is serving a term of confinement on or after July 1, 2004.
(D)(C) An agency having custody of an offender who is required to provide a DNA sample under pursuant to subsection (C)(1) or (C)(2) (B) must notify SLED at least three days, excluding weekends and holidays, before the individual person is paroled or released from confinement.
(E)(D) At such time as possible and Unless a sample has already been provided pursuant to the provisions of subsection (A), before release a person is released from confinement or release released from the agency's jurisdiction, a suitable sample from which DNA may be obtained for inclusion in the State DNA Database must be provided as a condition of probation or parole by:
(1) a person convicted or adjudicated delinquent before July 1, 2004, who is serving a probated sentence or is paroled on or after July 1, 2004, for:
(a) eavesdropping or peeping (Section 16-17-470); or
(b) any offense classified as a felony in Section 16-1-90 or any other offense that carries a maximum term of imprisonment of five years or more; and
(2) any criminal offender ordered by the court who was convicted or adjudicated delinquent before July 1, 2004, and who is serving a probated sentence or is paroled on or after July 1, 2004.
(F) A person who provides a sample pursuant to this article also must provide any other information as may be required by SLED.
(G)(E) A person required to provide a sample pursuant to this section may be required to provide another sample if the original sample is lost, damaged, contaminated, or unusable for examination prior to the creation of a DNA record or DNA profile suitable for inclusion in the DNA Database.
(H)(F) The provisions of this section apply to juveniles notwithstanding the provisions of Section 20-7-8510."
SECTION 4. Section 23-3-630 of the 1976 Code is amended to read:
"Section 23-3-630. (A) Only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, laboratory technician, or other an appropriately trained health care worker person may take a sample from which DNA may be obtained.
(B) A person taking a sample pursuant to this article is immune from liability if the sample was taken according to recognized medical procedures. However, no person is relieved from liability for negligence in the taking of any blood a sample."
SECTION 5. Section 23-3-650 of the 1976 Code is amended to read:
"Section 23-3-650. (A) The DNA sample record and the results of a DNA profile of an individual provided under this article are confidential and must be securely stored, except that SLED must make available the results to federal, state, and local law enforcement agencies and to approved crime laboratories which serve these agencies and to the solicitor or the solicitor's designee upon a written or electronic request and in furtherance of an official investigation of a criminal offense. These records and results or the DNA sample of an individual also must be made available as required by a court order following a hearing directing SLED to release the record or sample results. However, SLED must not make the DNA record or the DNA profile available to any entity that is not a law enforcement agency of any state or of the United States unless instructed to do so by order of a court with competent jurisdiction.
(B) To prevent duplications of DNA samples, SLED must coordinate with any law enforcement agency obtaining a DNA sample to determine whether a DNA sample from the person under lawful custodial arrest has been previously obtained and is in the DNA Database.
(B)(C) A person who wilfully discloses in any manner individually identifiable DNA information contained in the State DNA Database to a person or agency not entitled to receive this information is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred ten thousand dollars or three times the amount of any financial gain realized by the person, whichever is greater, or imprisoned not more than one year five years, or both.
(C)(D) A person who, without authorization, wilfully obtains individually identifiable DNA information from the State DNA Database is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred ten thousand dollars or three times the amount of any financial gain realized by the person, whichever is greater, or imprisoned not more than one year five years, or both."
SECTION 6. Section 23-3-660 of the 1976 Code is amended to read:
"Section 23-3-660. (A) A person whose DNA record or DNA profile has been included in the State DNA Database may request expungement on the grounds that must have his DNA record and his DNA profile expunged if:
(1) the charges pending against the person who has been arrested or ordered to submit a sample:
(a) have been nolle prossed;
(b) have been dismissed; or
(c) have been reduced below the requirement for inclusion in the State DNA Database; or
(2) the person has been found not guilty, or the person's conviction or adjudication has been reversed, set aside, or vacated.
(B) The solicitor in the county in which the person was charged must notify the person in writing, on a form created by South Carolina Court Administration, and must notify SLED when the person becomes eligible to have his DNA record and DNA profile expunged. Upon receiving this notification, SLED must begin the expungement procedure.
(C) SLED, at no cost to the person, shall must purge DNA and all other identifiable record information and the DNA profile from the State Database and shall must destroy the person's sample if SLED receives the person's written request for expungement and either:
(1) a document certified:
(a) by a circuit court judge,
(b) by a prosecuting agency, or
(c) by a clerk of court that must be produced to the requestor at no charge within fourteen days after the request is made and after one of the events in subsection (A) has occurred, and no new trial has been ordered by a court of competent jurisdiction; or
(2) a certified copy of the court order finding the person not guilty, or reversing, setting aside, or vacating the conviction or adjudication and proof that the identity of the individual making the request is the person whose record is to be expunged. If the person has more than one entry in the State DNA Database, only the entry covered by the expungement request may be expunged.
(D) The person's entry in the State DNA Database shall not be removed if the person has another qualifying offense.
(E) The jail intake officer, sheriff's office employee, courthouse employee, or detention facility intake officer shall provide written notification to the person of his right to have his DNA record and DNA profile expunged and the procedure for the expungement pursuant to this section at the time that the person's saliva or tissue sample is taken. The written notification must include that the person is eligible to have his DNA record and his DNA profile expunged at no cost to the person when:
(1) the charges pending against the person are:
(a) nolle prossed;
(b) dismissed; or
(c) reduced below the requirement for inclusion in the State DNA Database; or
(2) when the person has been found not guilty, or the person's conviction has been reversed, set aside, or vacated.
(F) When SLED completes the expungement process, SLED must notify the person whose DNA record and DNA profile have been expunged and inform him, in writing, that the expungement process has been completed."
SECTION 7. Section 23-3-670 of the 1976 Code is amended to read:
"Section 23-3-670. (A) The cost of collection supplies for processing a sample pursuant to this article must be paid by the general fund of the State. A person who is required to provide a sample pursuant to this article, upon conviction, pleading guilty or nolo contendere, or forfeiting bond, must pay a two hundred and fifty dollar processing fee which may not be waived by the court. However:
(1) If if the person is incarcerated, the fee must be paid before the person is paroled or released from confinement and may be garnished from wages the person earns while incarcerated.; and
(2) If if the person is not sentenced to a term of confinement, payment of the fee must be a condition of the person's sentence and may be paid in installments if so ordered by the court.
(B) The processing fee assessed pursuant to this section must be remitted to the general fund of the State and credited to the State Law Enforcement Division to offset the expenses SLED incurs in carrying out the provisions of this article."
SECTION 8. Section 23-3-120(B) of the 1976 Code is amended to read:
"(B) A person subjected to a lawful custodial arrest for a state offense must be fingerprinted at the time the person is booked and processed into a jail or detention facility or other location when the taking of fingerprints is required. Fingerprints taken by a law enforcement agency or detention facility pursuant to this section must be submitted to the State Law Enforcement Division's Central Record Repository within three days, excluding weekends and holidays, for the purposes of identifying record subjects and establishing criminal history record information."
SECTION 9. Section 23-3-640 of the 1976 Code is amended to read:
"Section 23-3-640. (A) Samples must be taken and submitted to SLED pursuant to specifications and procedures developed by SLED in regulation. SLED must conduct DNA identification testing, typing, and analysis in accordance with regulations promulgated by the State Law Enforcement Division on samples received for the purpose of developing a DNA profile, and SLED must use procedures, equipment, supplies, and computer software that are compatible with those used by the Federal Bureau of Investigation.
(B) The DNA profile on a sample may be used:
(1) to develop a convicted offender database to identify suspects in otherwise nonsuspect cases;
(2) to develop a population database when personal identifying information is removed;
(3) to support identification research and protocol development of forensic DNA analysis methods;
(4) to generate investigative leads in criminal investigations;
(5) for quality control or quality assurance purposes, or both;
(6) to assist in the recovery and identification of human remains from mass disasters;
(7) for other humanitarian purposes including identification of missing persons.
(C) The disposition of all samples obtained pursuant to this article is at the discretion of SLED. Once the DNA profile has been placed into the DNA Database, SLED must immediately destroy the DNA sample.
(D) SLED must securely store DNA samples. The samples are confidential and must remain in the custody of SLED or a private laboratory designated by SLED if the laboratory's standards for confidentiality and security are at least as stringent as those of SLED.
SECTION 10. Title 17 of the 1976 Code is amended by adding:
Section 17-28-10. This article may be cited as the 'Access to Justice Post-Conviction DNA Testing Act'.
Section 17-28-20. For purposes of this article:
(1) 'Biological material' means any blood, tissue, hair, saliva, bone, or semen from which DNA marker groupings may be obtained. This includes material catalogued separately on slides, swabs, or test tubes or present on other evidence including, but not limited to, clothing, ligatures, bedding, other household material, drinking cups, or cigarettes.
(2) 'Custodian of evidence' means an agency or political subdivision of the State including, but not limited to, a law enforcement agency, a solicitor's office, the Attorney General's Office, a county clerk of court, or a state grand jury that possesses and is responsible for the control of evidence during a criminal investigation or proceeding, or a person ordered by a court to take custody of evidence during a criminal investigation or proceeding.
(3) 'DNA' means deoxyribonucleic acid.
(4) 'Incarceration' means serving a term of confinement in the custody of the South Carolina Department of Corrections or the South Carolina Department of Juvenile Justice and does not include a person on probation, parole, or under a community supervision program.
(5) 'Law enforcement agency' means a lawfully established federal, state, or local public agency that is responsible for the prevention and detection of crime and the enforcement of penal, traffic, regulatory, game, immigration, postal, customs, or controlled substances laws.
(6) 'Physical evidence' means an object, thing, or substance that is or is about to be produced or used or has been produced or used in a criminal proceeding related to an offense enumerated in Section 17-28-30, and that is in the possession of a custodian of evidence.
Section 17-28-30. (A) A person who pled not guilty to at least one of the following offenses, was subsequently convicted of or adjudicated delinquent for the offense, is currently incarcerated for the offense, and asserts he is innocent of the offense, may apply for forensic DNA testing of his DNA and any physical evidence or biological material related to his conviction or adjudication:
(1) murder (Section 16-3-10);
(2) killing by poison (Section 16-3-30);
(3) killing by stabbing or thrusting (Section 16-3-40);
(4) voluntary manslaughter (Section 16-3-50);
(5) homicide by child abuse (Section 16-3-85(A)(1));
(6) aiding and abetting a homicide by child abuse (Section 16-3-85(A)(2));
(7) lynching in the first degree (Section 16-3-210);
(8) killing in a duel (Section 16-3-430);
(9) spousal sexual battery (Section 16-3-615);
(10) criminal sexual conduct in the first degree (Section 16-3-652);
(11) criminal sexual conduct in the second degree (Section 16-3-653);
(12) criminal sexual conduct in the third degree (Section 16-3-654);
(13) criminal sexual conduct with a minor (Section 16-3-655);
(14) arson in the first degree resulting in death (Section 16-11-110(A));
(15) burglary in the first degree for which the person is sentenced to ten years or more (Section 16-11-311(B));
(16) armed robbery for which the person is sentenced to ten years or more (Section 16-11-330(A));
(17) damaging or destroying a building, vehicle, or property by means of an explosive incendiary resulting in death (Section 16-11-540);
(18) abuse or neglect of a vulnerable adult resulting in death (Section 43-35-85(F));
(19) sexual misconduct with an inmate, patient, or offender (Section 44-23-1150);
(20) unlawful removing or damaging of an airport facility or equipment resulting in death (Section 55-1-30(3));
(21) interference with traffic-control devices or railroad signs or signals resulting in death (Section 56-5-1030(B)(3));
(22) driving a motor vehicle under the influence of alcohol or drugs resulting in death (Section 56-5-2945);
(23) obstruction of railroad resulting in death (Section 58-17-4090); or
(24) accessory before the fact (Section 16-1-40) to any offense enumerated in this subsection.
(B) A person who pled guilty or nolo contendere to at least one of the offenses enumerated in subsection (A), was subsequently convicted of or adjudicated delinquent for the offense, is currently incarcerated for the offense, and asserts he is innocent of the offense, may apply for forensic DNA testing of his DNA and any physical evidence or biological material related to his conviction or adjudication no later than seven years from the date of sentencing.
Section 17-28-40. (A) The application must be made on such form as prescribed by the Supreme Court.
(B) The application must be verified by the applicant and filed under the original indictment number or petition with the clerk of court of the general sessions court or family court in which the conviction or adjudication took place. Facts within the personal knowledge of the applicant and the authenticity of all documents and exhibits included in or attached to the application must be sworn to affirmatively as true and correct.
(C) The application must, under penalty of perjury:
(1) identify the proceedings in which the applicant was convicted or adjudicated;
(2) give the date of the entry of the judgment and sentence and identify the applicant's current place of incarceration;
(3) identify all previous or ongoing proceedings, together with the grounds therein asserted, taken by the applicant to secure relief from his conviction or adjudication;
(4) make a reasonable attempt to identify the physical evidence or biological material that should be tested and the specific type of DNA testing that is sought;
(5) explain why the identity of the applicant was or should have been a significant issue during the original court proceedings, notwithstanding the fact that the applicant may have pled guilty or nolo contendere or made or is alleged to have made an incriminating statement or admission as to identity;
(6) explain why the physical evidence or biological material sought to be tested was not previously subjected to DNA testing, or, if the physical evidence or biological material sought to be tested was previously subjected to DNA testing, provide the results of the testing and explain how the requested DNA test would provide a substantially more probative result;
(7) explain why, if the DNA testing produces exculpatory results, the testing will constitute new evidence that will probably change the result of the applicant's conviction or adjudication if a new trial is granted and is not merely cumulative or impeaching; and
(8) provide that the application is made to demonstrate innocence and not solely to delay the execution of a sentence or the administration of justice.
Section 17-28-50. (A) The clerk shall file the application upon its receipt and promptly bring it to the attention of the court and deliver for docketing a copy to the solicitor of the circuit in which the applicant was convicted or adjudicated. The Attorney General and the appropriate custodian of evidence shall be notified by the solicitor. The victim shall be notified pursuant to the provisions of Article 15, Chapter 3, Title 16.
(B) Within ninety days after the forwarding of the application, or upon any further time the court may fix, the solicitor of the circuit in which the applicant was convicted or adjudicated, or the Attorney General if the Attorney General prosecuted the case, shall respond to the application. Within ninety days after the docketing of the application, or within any further time the court may fix, the victim may respond as provided in Article 15, Chapter 3, Title 16. The court may proceed with a hearing if the solicitor or Attorney General, as applicable, or the victim does not respond to the application.
(C) At any time prior to entry of judgment the court may, when appropriate, issue orders for amendment of the application and for any documents related to the application including, but not limited to, pleadings, motions, and requests for extensions of time. In considering the application and related documents, the court shall take account of substance, regardless of defects of form. When the court is satisfied, on the basis of the application, the responses, or the motion of the solicitor or Attorney General, as applicable, that the applicant is not entitled to DNA testing and no purpose would be served by any further proceedings, it may indicate to the applicant and the solicitor or Attorney General, as applicable, its intention to summarily dismiss the application and its reasons for so doing. The victim shall be notified of the proposed dismissal pursuant to the provisions of Article 15, Chapter 3, Title 16. The court shall make specific findings of fact and expressly state its conclusions of law. The applicant shall be given an opportunity to reply to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed, grant leave to file an amended application, or direct that the proceedings otherwise continue.
(D) If the applicant has filed a previous application for DNA testing, the applicant may file a successive application, provided the applicant asserts a grounds for DNA testing which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.
Section 17-28-60. If the applicant is unable to pay court costs and expenses of counsel, these costs and expenses shall be made available to the applicant in amounts and to the extent provided pursuant to Section 17-27-60. The applicant must request counsel at the time he files his application. The court must appoint counsel for an indigent applicant after the court has determined that the application is sufficient to proceed to a hearing but prior to the actual hearing. If counsel has been appointed for the applicant in an ongoing post-conviction relief proceeding, then the counsel appointed in the post-conviction relief proceeding shall also serve as counsel for purposes of this article. The performance of counsel pursuant to this article shall not form the basis for relief in any post-conviction relief proceeding.
Section 17-28-70. (A) The court shall order a custodian of evidence to preserve all physical evidence and biological material related to the applicant's conviction or adjudication pursuant to the provisions of Article 3, Chapter 28, Title 17.
(B) The custodian of evidence shall prepare an inventory of the physical evidence and biological material and issue a copy of the inventory to the applicant, the solicitor or Attorney General, as applicable, and the court.
(C) For physical evidence or biological material that the custodian of evidence asserts has been lost or destroyed, the court shall order a custodian of evidence to locate and provide the applicant and the solicitor or Attorney General, as applicable, with a copy of any document, note, log, or report relating to the physical evidence or biological material.
(D) If no physical evidence or biological material is discovered, the court may order a custodian of evidence, in collaboration with law enforcement, to search physical evidence and biological material in the custodian of evidence's possession that would reasonably be expected to produce relevant physical evidence or biological material. The order shall provide that any physical evidence and biological material subject to this search must be adequately protected by the custodian of evidence, in collaboration with law enforcement, from interference by a third party, including, but not limited to, alteration, contamination, destruction, or tampering with the physical evidence and biological material and any chain of custody related to the physical evidence and biological material.
(E) A person who wilfully and maliciously destroys, alters, conceals, or tampers with physical evidence or biological material that is required to be preserved pursuant to this section with the intent to impair the integrity of the physical evidence or biological material, prevent the physical evidence or biological material from being subjected to DNA testing, or prevent the production or use of the physical evidence or biological material in an official proceeding, is subject to the provisions of Section 17-28-350.
Section 17-28-80. For any physical evidence or biological material previously subjected to DNA testing whether by the applicant or the solicitor or Attorney General, as applicable, the court shall order the production of all written reports and laboratory reports prepared in connection with the DNA testing, including the underlying data and laboratory notes.
Section 17-28-90. (A) The application must be heard in, and before a judge of, the general sessions court or family court in which the conviction or adjudication took place. A record of the proceedings must be made and preserved. All rules and statutes applicable in criminal proceedings are available to the applicant and the solicitor or Attorney General, as applicable.
(B) The court shall order DNA testing of the applicant's DNA and the physical evidence or biological material upon a finding that the applicant has established each of the following factors by a preponderance of the evidence:
(1) the physical evidence or biological material to be tested is available and is potentially in a condition that would permit the requested DNA testing;
(2) the physical evidence or biological material to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced, or altered in any material aspect, or the testing itself may establish the integrity of the physical evidence or biological material;
(3) the physical evidence or biological material sought to be tested is material to the issue of the applicant's identity as the perpetrator of, or accomplice to, the offense notwithstanding the fact that the applicant may have pled guilty or nolo contendere or made or is alleged to have made an incriminating statement or admission as to identity;
(4) the DNA results of the physical evidence or biological material sought to be tested would be material to the issue of the applicant's identity as the perpetrator of, or accomplice to, the offense notwithstanding the fact that the applicant may have pled guilty or nolo contendere or made or is alleged to have made an incriminating statement or admission as to identity;
(5) if the requested DNA testing produces exculpatory results, the testing will constitute new evidence that will probably change the result of the applicant's conviction or adjudication if a new trial is granted and is not merely cumulative or impeaching;
(6) the physical evidence or biological material sought to be tested was not previously subjected to DNA testing, or, if the physical evidence or biological material sought to be tested was previously subjected to DNA testing, the requested DNA test would provide a substantially more probative result; and
(7) the application is made to demonstrate innocence and not solely to delay the execution of a sentence or the administration of justice.
(C) The court shall order that any sample taken of the applicant's DNA for purposes of DNA testing pursuant to this article or for submission to SLED pursuant to subsection (F) be taken by a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, laboratory technician, or other appropriately trained health care worker. The applicant's counsel, if any, and the solicitor or Attorney General, as applicable, must be allowed to observe the taking of any sample.
(D) The court shall order that the applicant's DNA sample and the physical evidence or biological material be tested by SLED, a local Combined DNA Index System (CODIS) laboratory, or, prior to any testing, any other laboratory approved by SLED, in an effort to ensure that the results may be entered into the State DNA Database and Combined DNA Index System. Any other type of DNA testing ordered by the court shall be conducted in consultation with SLED or a local CODIS laboratory.
(E) The court shall order that the applicant pay the costs of the DNA testing. If the applicant is indigent, the costs of the DNA testing shall be paid by the State.
(F) The court shall order that a sample of the applicant's DNA be submitted to SLED to compare with profiles in the State DNA Database and any federal or other law enforcement DNA database in compliance with National DNA Index System (NDIS) procedures. The sample must be submitted regardless of any previous samples submitted by the applicant. If the comparison matches a DNA profile for the offense for which the applicant was convicted or adjudicated, the DNA sample may be retained in the State DNA Database. If the comparison does not match a DNA profile for the offense for which the applicant was convicted or adjudicated, but results in a match with a DNA profile for any other offense, the DNA sample may be retained in the State DNA Database. SLED shall notify the appropriate law enforcement agency. If the comparison does not match a DNA profile for any offense, the DNA sample must be destroyed. Any previous samples must be maintained by SLED subject to the State DNA Database Act. SLED shall report to the court, the applicant, and the solicitor or Attorney General, as applicable, the results of all DNA database comparisons. The victim shall be notified of the results of all DNA database comparisons pursuant to Article 15, Chapter 3, Title 16.
(G) The applicant and the solicitor or Attorney General, as applicable, shall have the right to appeal a final order denying or granting DNA testing by a writ of certiorari to the Court of Appeals or the Supreme Court as provided by the South Carolina Appellate Court Rules.
Section 17-28-100. (A) The results of the DNA test must be fully disclosed to the court, the applicant, and the solicitor or Attorney General, as applicable. The victim shall be notified of the results of the DNA test pursuant to Article 15, Chapter 3, Title 16. The court shall order the production of any written reports and laboratory reports prepared in connection with the DNA testing, including underlying data and notes.
(B) The results of the DNA test may be used by the applicant, solicitor, or Attorney General in any post-conviction proceeding or trial. If the results of the DNA test are exculpatory, the applicant may use the exculpatory results of the DNA test as grounds for filing a motion for new trial pursuant to the South Carolina Rules of Criminal Procedure. If the results of the DNA test are inconclusive, the court may allow for additional DNA testing or may dismiss the application. If the results of the DNA test are inculpatory, the court shall dismiss the application and shall, on motion of the solicitor or Attorney General, as applicable:
(1) make a determination whether the applicant's assertion of actual innocence was intentionally false, and, as a result, hold the applicant in contempt of court;
(2) assess against the applicant the cost of any DNA testing not already paid by the applicant;
(3) forward the findings to the South Carolina Department of Corrections, who may use such finding to deny good conduct credit; and
(4) forward the findings to the Department of Probation, Parole and Pardon Services, who may use the findings to deny parole.
(C) Except as otherwise provided in this article, DNA samples, results, and information taken from the applicant are exempt from any law requiring disclosure of information to the public.
Section 17-28-110. (A) Nothing in this article prohibits a person and a solicitor or the Attorney General, as applicable, from consenting to and conducting post-conviction DNA testing by agreement of the parties. The person may use the exculpatory results of the DNA test as the grounds for filing a motion for new trial pursuant to the South Carolina Rules of Criminal Procedure.
(B) Nothing in this article prohibits a person from filing an application for post-conviction relief pursuant to Chapter 27, Title 17.
(C) Nothing in this article shall be construed to give rise to a claim for damages against the State of South Carolina, a political subdivision of the State, or an employee of the State or a political subdivision of the State. Failure of a custodian of evidence to preserve physical evidence or biological material pursuant to this article does not entitle the applicant to any relief from conviction or adjudication but does not prohibit a person from presenting such information at a subsequent hearing or trial.
Section 17-28-120. No more than one hundred fifty thousand dollars may be expended from the general fund in any fiscal year to administer the provisions of this article."
SECTION 11. Chapter 28 of Title 17 of the 1976 Code is amended by adding:
Section 17-28-300. This article shall be cited as the 'Preservation of Evidence Act'.
Section 17-28-310. For purposes of this article:
(1) 'Biological material' means any blood, tissue, hair, saliva, bone, or semen from which DNA marker groupings may be obtained. This includes material catalogued separately on slides, swabs, or test tubes or present on other evidence including, but not limited to, clothing, ligatures, bedding, other household material, drinking cups, or cigarettes.
(2) 'Custodian of evidence' means an agency or political subdivision of the State including, but not limited to, a law enforcement agency, a solicitor's office, the Attorney General's Office, a county clerk of court, or a state grand jury that possesses and is responsible for the control of evidence during a criminal investigation or proceeding, or a person ordered by a court to take custody of evidence during a criminal investigation or proceeding.
(3) 'DNA' means deoxyribonucleic acid.
(4) 'Incarceration' means serving a term of confinement in the custody of the South Carolina Department of Corrections or the South Carolina Department of Juvenile Justice and does not include a person on probation, parole, or under a community supervision program.
(5) 'Law enforcement agency' means a lawfully established federal, state, or local public agency that is responsible for the prevention and detection of crime and the enforcement of penal, traffic, regulatory, game, immigration, postal, customs, or controlled substances laws.
(6) 'Physical evidence' means an object, thing, or substance that is or is about to be produced or used or has been produced or used in a criminal proceeding related to an offense enumerated in Section 17-28-320, and that is in the possession of a custodian of evidence.
Section 17-28-320. (A) A custodian of evidence must preserve all physical evidence and biological material related to the conviction or adjudication of a person for at least one of the following offenses:
(1) murder (Section 16-3-10);
(2) killing by poison (Section 16-3-30);
(3) killing by stabbing or thrusting (Section 16-3-40);
(4) voluntary manslaughter (Section 16-3-50);
(5) homicide by child abuse (Section 16-3-85(A)(1));
(6) aiding and abetting a homicide by child abuse (Section 16-3-85(A)(2));
(7) lynching in the first degree (Section 16-3-210);
(8) killing in a duel (Section 16-3-430);
(9) spousal sexual battery (Section 16-3-615);
(10) criminal sexual conduct in the first degree (Section 16-3-652);
(11) criminal sexual conduct in the second degree (Section 16-3-653);
(12) criminal sexual conduct in the third degree (Section 16-3-654);
(13) criminal sexual conduct with a minor (Section 16-3-655);
(14) arson in the first degree resulting in death (Section 16-11-110(A));
(15) burglary in the first degree for which the person is sentenced to ten years or more (Section 16-11-311(B));
(16) armed robbery for which the person is sentenced to ten years or more (Section 16-11-330(A));
(17) damaging or destroying a building, vehicle, or property by means of an explosive incendiary resulting in death (Section 16-11-540);
(18) abuse or neglect of a vulnerable adult resulting in death (Section 43-35-85(F));
(19) sexual misconduct with an inmate, patient, or offender (Section 44-23-1150);
(20) unlawful removing or damaging of an airport facility or equipment resulting in death (Section 55-1-30(3));
(21) interference with traffic-control devices or railroad signs or signals resulting in death (Section 56-5-1030(B)(3));
(22) driving a motor vehicle under the influence of alcohol or drugs resulting in death (Section 56-5-2945);
(23) obstruction of railroad resulting in death (Section 58-17-4090); or
(24) accessory before the fact (Section 16-1-40) to any offense enumerated in this subsection.
(B) The physical evidence and biological material must be preserved:
(1) subject to a chain of custody as required by South Carolina law;
(2) with sufficient documentation to locate the physical evidence and biological material; and
(3) under conditions reasonably designed to preserve the forensic value of the physical evidence and biological material.
(C) The physical evidence and biological material must be preserved until the person is released from incarceration, dies while incarcerated, or is executed for the offense enumerated in subsection (A). However, if the person is convicted or adjudicated on a guilty or nolo contendere plea for the offense enumerated in subsection (A), the physical evidence and biological material must be preserved for seven years from the date of sentencing, or until the person is released from incarceration, dies while incarcerated, or is executed for the offense enumerated in subsection (A), whichever comes first.
Section 17-28-330. (A) After a person is convicted or adjudicated for at least one of the offenses enumerated in Section 17-28-320, a custodian of evidence shall register with the South Carolina Department of Corrections or the South Carolina Department of Juvenile Justice, as applicable, as a custodian of evidence for physical evidence or biological material related to the person's conviction or adjudication.
(B) The South Carolina Department of Corrections or the South Carolina Department of Juvenile Justice, as applicable, shall notify a custodian of evidence registered pursuant to subsection (A) if the person is released from incarceration, dies while incarcerated, or is executed for the offense enumerated in Section 17-28-320.
Section 17-28-340. (A) After a person is convicted or adjudicated for at least one of the offenses enumerated in Section 17-28-320, a custodian of evidence may petition the general sessions court or family court in which the person was convicted or adjudicated for an order allowing for disposition of the physical evidence or biological material prior to the period of time described in Section 17-28-320, if:
(1) the physical evidence or biological material must be returned to its rightful owner, is of such size, bulk, or physical character as to make retention impracticable, or is otherwise required to be disposed of by law; or
(2) DNA evidence was previously introduced at trial, was found to be inculpatory, and all appeals and post-conviction procedures have been exhausted.
(B) The petition must:
(1) be made on such form as prescribed by the Supreme Court;
(2) identify the proceedings in which the person was convicted or adjudicated;
(3) give the date of the entry of the judgment and sentence;
(4) specifically set forth the physical evidence or biological material to be disposed of; and
(5) specifically set forth the reason for the disposition.
(C) The clerk of court shall file the petition upon its receipt and promptly bring it to the attention of the court and deliver a copy to the convicted or adjudicated person and the solicitor or Attorney General, as applicable. The victim shall be notified of the petition pursuant to Article 15, Chapter 3, Title 16.
(D) The convicted or adjudicated person and the solicitor or Attorney General, as applicable, shall have one hundred and eighty days to respond to the petition. The victim may respond within one hundred and eighty days in accordance with the provisions of Article 15, Chapter 3, Title 16.
(E) After a hearing, the court may order that the custodian of evidence may dispose of the physical evidence or biological material if the court determines by preponderance of evidence that:
(1) the physical evidence or biological material must be returned to its rightful owner, is of such size, bulk, or physical character as to make retention impracticable, or is otherwise required to be disposed of by law, or DNA evidence was previously introduced at trial, was found to be inculpatory, and all appeals and post-conviction procedures have been exhausted;
(2) the convicted or adjudicated person, the solicitor or Attorney General, as applicable, and the victim have been notified of the petition for an order to dispose of the physical evidence or biological material;
(3) the convicted or adjudicated person did not file an affidavit declaring, under penalty of perjury, the person's intent to file an application for post-conviction DNA testing of the physical evidence or biological material pursuant to Article 1, Chapter 28, Title 17 within ninety days followed by the actual filing of the application;
(4) the solicitor or the Attorney General, as applicable, and the victim have not filed a response requesting that the physical evidence or biological material not be disposed of; and
(5) no other provision of federal or state law, regulation, or court rule requires preservation of the physical evidence or biological material.
(F) If the court issues an order for the disposition of the physical evidence or biological material, the court may require a custodian of evidence to take reasonable measures to remove and preserve portions of the physical evidence or biological material in a quantity sufficient to:
(1) permit future DNA testing or other scientific analysis; or
(2) for other reasons, upon request and good cause shown, by the solicitor or Attorney General, as applicable, or the victim.
Section 17-28-350. A person who wilfully and maliciously destroys, alters, conceals, or tampers with physical evidence or biological material that is required to be preserved pursuant to this article with the intent to impair the integrity of the physical evidence or biological material, prevent the physical evidence or biological material from being subjected to DNA testing, or prevent the production or use of the physical evidence or biological material in an official proceeding, is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars for a first offense, and not more than five thousand dollars or imprisoned for not more than one year, or both, for each subsequent violation.
Section 17-28-360. Nothing in this article shall be construed to give rise to a claim for damages against the State of South Carolina, a political subdivision of the State, an employee of the State, or a political subdivision of the State. Failure of a custodian of evidence to preserve physical evidence or biological material pursuant to this article does not entitle a person to any relief from conviction or adjudication but does not prohibit a person from presenting such information at a subsequent hearing or trial."
SECTION 12. The repeal or amendment by the provisions of this section or any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 13. If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 14. The provisions of Sections 1 through 9 of this act take effect on January 1, 2009. However, the implementation of the procedures provided for in this act is contingent upon the State Law Enforcement Division's receipt of funds necessary to implement these provisions. Until the provisions of this act are fully funded and executed, implementation of the provisions of this act shall not prohibit the collection and testing of DNA samples by the methods allowed prior to the implementation of this act from persons convicted, adjudicated delinquent, or on probation or parole for those crimes listed in Section 23-3-620. Upon this act taking effect, a South Carolina law enforcement agency, which has in its possession any DNA samples that have been included in the DNA Database, immediately must destroy and dispose of the DNA samples in accordance with regulations promulgated by SLED pursuant to Section 23-3-640. The provisions of Section 17-28-350 as contained in Section 11 becomes effective upon the signature of the Governor. The remaining provisions of this act take effect on January 1, 2009. The enactment of these provisions prior to the effective date indicates the intent of the General Assembly that statewide laws or practices shall exist to ensure additional procedures for post-conviction DNA testing, and proper preservation of biological evidence connected to murder, rape, and non-negligent homicide in order that application for available federal funds shall be made by the appropriate agencies and considered by the appropriate federal agencies prior to the effective date. /
Renumber sections to conform.
Amend title to conform.
JAMES H. HARRISON for Committee.
TO AMEND SECTION 23-3-620, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO OFFENDERS BEING REQUIRED TO SUBMIT SAMPLES FOR INCLUSION IN THE DNA DATABASE, SO AS TO REQUIRE SAMPLES UPON LAWFUL CUSTODIAL ARREST FOR A FELONY OFFENSE, OFFENSE THAT CARRIES A SENTENCE OF FIVE YEARS OR MORE, OR AN ARREST FOR EAVESDROPPING, PEEPING, OR STALKING, AND AT THE TIME OF INTAKE AT A JAIL OR PRISON, TO PROVIDE THAT THESE PROVISIONS APPLY TO JUVENILES, AND TO REQUIRE SAMPLES TO BE PROVIDED BEFORE A PERSON IS RELEASED ON PAROLE, RELEASED FROM CONFINEMENT, OR RELEASED FROM AN AGENCY'S JURISDICTION; TO AMEND SECTION 23-3-630, RELATING TO PERSONS AUTHORIZED TO TAKE DNA SAMPLES AND THEIR IMMUNITY FROM LIABILITY, SO AS TO DELETE REQUIREMENTS THAT THE PERSONS AUTHORIZED MUST BE CERTAIN TYPES OF HEALTH PROFESSIONALS AND TO PROVIDE THAT THEY MUST BE APPROPRIATELY TRAINED; TO AMEND SECTION 23-3-650, RELATING TO THE CONFIDENTIALITY OF DNA, SO AS TO PROVIDE FOR COORDINATION BETWEEN SLED AND LOCAL LAW ENFORCEMENT AGENCIES TO PREVENT COLLECTION AND PROCESSING OF DUPLICATE DNA SAMPLES; TO AMEND SECTIONS 23-3-660 AND 23-3-670, RELATING TO EXPUNGEMENTS AND FEES FOR DNA SAMPLES, SO AS TO PROVIDE FOR EXPUNGEMENT AT NO COST TO THE ACCUSED WHEN CHARGES ARE DISMISSED, NOLLE PROSSED, OR REDUCED BELOW THE REQUIREMENT FOR THE TAKING OF THE DNA SAMPLE, TO PROVIDE THAT THE STATE WILL PAY FOR THE COSTS OF COLLECTING AND PROCESSING A DNA SAMPLE, AND TO PROVIDE THAT FEES COLLECTED FROM CONVICTED PERSONS SHALL BE REMITTED TO THE GENERAL FUND OF THE STATE AND CREDITED TO THE STATE LAW ENFORCEMENT DIVISION; AND TO AMEND SECTION 23-3-120, RELATING TO THE TAKING OF FINGERPRINTS, SO AS TO PROVIDE FOR THE PLACE AND TIMING FOR THE FINGERPRINTING OF A PERSON PLACED UNDER CUSTODIAL ARREST.
Whereas, DNA evidence has been called the "fingerprint of the 21st century"; and
Whereas, all fifty states and the federal government now collect DNA samples from convicted offenders; and
Whereas, the federal government now collects DNA samples from persons arrested for violating a federal offense; and
Whereas, the more samples a DNA database contains, the more crimes are solved; and
Whereas, a study from the Chicago Mayor's Office demonstrated that if eight offenders had submitted DNA samples when first arrested for a felony offense, sixty violent crimes, including thirty rapes and twenty-two murders, could have been prevented; and
Whereas, a study from Virginia, which began collecting DNA samples from arrestees in 2003, shows that more than 222 crimes have been solved using the DNA samples from arrestees; and
Whereas, there has been no report of a state or federal agency using the DNA information obtained from arrestees for any other purposes other than those allowed by law. Now, therefore,
The South Carolina Senate Criminal Justice System Task Force finds that the South Carolina laws on DNA sampling and collection must be changed to accommodate new technologies and strategies that convict the guilty and exonerate the innocent.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "South Carolina Protection from Violence Against Women and Children Act".
SECTION 2. Section 23-3-620 of the 1976 Code is amended to read:
"Section 23-3-620. (A) Following sentencing and at the time of intake at a jail or prison a lawful custodial arrest or a direct indictment for:
(1) a felony offense or an offense that is punishable by a sentence of five years or more; or
(2) eavesdropping, peeping, or stalking,
any of which are committed in this State, a person arrested or ordered by a court must provide a saliva or tissue sample from which DNA may be obtained for inclusion in the State DNA Database must be provided by:.
(1) any person convicted or adjudicated delinquent and incarcerated in a state correctional facility on or after July 1, 2004, for:
(a) eavesdropping or peeping (Section 16-17-470); or
(b) any offense classified as a felony in Section 16-1-90 or any other offense that carries a maximum term of imprisonment of five years or more; and
(2) any criminal offender convicted or adjudicated delinquent on or after July 1, 2004, who is ordered by the court to provide a sample.
(B) A convicted offender who is required to provide a DNA sample under subsections (A)(1) or (A)(2) but who is not sentenced to a term of confinement must provide a sample as a condition of his sentence. This sample must be taken at a prison, jail, or other location as specified by the sentencing court detention facility at the time the person is booked and processed into the jail or detention facility following the custodial arrest, or other location when the taking of fingerprints is required prior to a conviction. The sample must be submitted to SLED as directed by SLED. If appropriately trained personnel are not available to take a sample from which DNA may be obtained, the failure of the arrested person to provide a DNA sample shall not be the sole basis for refusal to release the person from custody. An arrested person who is released from custody before providing a DNA sample must provide a DNA sample at a location specified by the law enforcement agency with jurisdiction over the offense on or before the first court appearance.
(C)(B) At such time as possible and before parole or release Unless a sample has already been provided pursuant to the provisions of subsection (A), before a person may be paroled or released from confinement, the person must provide a suitable sample from which DNA may be obtained for inclusion in the State DNA Database must be provided by:
(1) a person who was convicted or adjudicated delinquent before July 1, 2004, and who was sentenced to and is serving a term of confinement on or after July 1, 2004, for:
(a) eavesdropping or peeping (Section 16-17-470); or
(b) any offense classified as a felony in Section 16-1-90 or any other offense that carries a maximum term of imprisonment of five years or more; and
(2) any criminal offender ordered by the court who was convicted or adjudicated delinquent before July 1, 2004, and who was sentenced to and is serving a term of confinement on or after July 1, 2004.
(D)(C) An agency having custody of an offender who is required to provide a DNA sample under pursuant to subsection (C)(1) or (C)(2) (B) must notify SLED at least three days, excluding weekends and holidays, before the individual person is paroled or released from confinement.
(E)(D) At such time as possible and Unless a sample has already been provided pursuant to the provisions of subsection (A), before release a person is released from confinement or release released from the agency's jurisdiction, a suitable sample from which DNA may be obtained for inclusion in the State DNA Database must be provided as a condition of probation or parole by:
(1) a person convicted or adjudicated delinquent before July 1, 2004, who is serving a probated sentence or is paroled on or after July 1, 2004, for:
(a) eavesdropping or peeping (Section 16-17-470); or
(b) any offense classified as a felony in Section 16-1-90 or any other offense that carries a maximum term of imprisonment of five years or more; and
(2) any criminal offender ordered by the court who was convicted or adjudicated delinquent before July 1, 2004, and who is serving a probated sentence or is paroled on or after July 1, 2004.
(F) A person who provides a sample pursuant to this article also must provide any other information as may be required by SLED.
(G)(E) A person required to provide a sample pursuant to this section may be required to provide another sample if the original sample is lost, damaged, contaminated, or unusable for examination.
(H)(F) The provisions of this section apply to juveniles notwithstanding the provisions of Section 20-7-8510."
SECTION 3. Section 23-3-630 of the 1976 Code is amended to read:
"Section 23-3-630. (A) Only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, laboratory technician, or other an appropriately trained health care worker person may take a sample from which DNA may be obtained.
(B) A person taking a sample pursuant to this article is immune from liability if the sample was taken according to recognized medical procedures. However, no person is relieved from liability for negligence in the taking of any blood a sample."
SECTION 4. Section 23-3-650 of the 1976 Code is amended to read:
"Section 23-3-650. (A) The DNA sample and the results of a DNA profile of an individual provided under this article are confidential and must be securely stored, except that SLED must make available the results to federal, state, and local law enforcement agencies and to approved crime laboratories which serve these agencies and to the solicitor or the solicitor's designee upon a written or electronic request and in furtherance of an official investigation of a criminal offense. These results or the DNA sample of an individual also must be made available as required by a court order following a hearing directing SLED to release the record or sample.
(B) To prevent duplications of DNA samples, SLED must coordinate with any law enforcement agency obtaining a DNA sample to determine whether a DNA sample from the person under lawful custodial arrest has been previously obtained and is in the DNA database.
(B)(C) A person who wilfully discloses in any manner individually identifiable DNA information contained in the State DNA Database to a person or agency not entitled to receive this information is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than one year, or both.
(C)(D) A person who, without authorization, wilfully obtains individually identifiable DNA information from the State DNA Database is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than one year, or both."
SECTION 5. Section 23-3-660 of the 1976 Code is amended to read:
"Section 23-3-660. (A) A person whose DNA record has been included in the State DNA Database may request expungement on the grounds that has the right to have his record expunged upon written request if:
(1) the charges pending against the person who has been arrested or ordered to submit a sample:
(a) have been nolle prossed;
(b) have been dismissed; or
(c) have been reduced below the requirement for inclusion in the State DNA Database; or
(2) the person has been adjudicated not guilty, or the person's conviction or adjudication has been reversed, set aside, or vacated.
(B) SLED, at no cost to the person, shall must purge DNA and all other identifiable record information from the State Database and shall must destroy the person's sample if SLED receives the person's written request for expungement and either:
(1) a document certified:
(a) by a circuit court judge,
(b) by a prosecuting agency, or
(c) by a clerk of court
that must be produced to the requestor at no charge within fourteen days after the request is made and after one of the events in subsection (A) has occurred, and no new trial has been ordered by a court of competent jurisdiction; or
(2) a certified copy of the court order adjudicating the person not guilty, or reversing, setting aside, or vacating the conviction or adjudication and.
(C) The person seeking expungement must provide proof that the identity of the individual making the request is the person whose record is to be expunged.
(D) If the person has more than one entry in the State DNA Database, only the entry covered by the expungement request may be expunged The person's entry and sample in the State DNA Database shall not be removed if the person has another qualifying offense.
(E) The solicitor must notify the person in writing of the person's right to have his record expunged and the procedure for expungement pursuant to this section. The written notification must be produced to the person when:
(1) the charges pending against the person are:
(a) nolle prossed;
(b) dismissed; or
(c) reduced below the requirement for inclusion in the State DNA Database; or
(2) when the person has been adjudicated not guilty, or the person's conviction or adjudication has been reversed, set aside, or vacated."
SECTION 6. Section 23-3-670 of the 1976 Code is amended to read:
"Section 23-3-670. (A) The cost of collection supplies for processing a sample pursuant to this article must be paid by the general fund of the State. A person who is required to provide a sample pursuant to this article, upon conviction, pleading guilty or nolo contendere, or forfeiting bond, must pay a two hundred and fifty dollar processing fee which may not be waived by the court.
(1) If the person is incarcerated, the fee must be paid before the person is paroled or released from confinement and may be garnished from wages the person earns while incarcerated.
(2) If the person is not sentenced to a term of confinement, payment of the fee must be a condition of the person's sentence and may be paid in installments if so ordered by the court.
(B) The processing fee assessed pursuant to this section must be remitted to the general fund of the State and credited to the State Law Enforcement Division to offset the expenses SLED incurs in carrying out the provisions of this article."
SECTION 7. Section 23-3-120(B) of the 1976 Code is amended to read:
"(B) A person subjected to a lawful custodial arrest for a state offense must be fingerprinted at the time the person is booked and processed into a jail or detention facility or other location when the taking of fingerprints is required. Fingerprints taken by a law enforcement agency or detention facility pursuant to this section must be submitted to the State Law Enforcement Division's Central Record Repository within three days, excluding weekends and holidays, for the purposes of identifying record subjects and establishing criminal history record information."
SECTION 8. The repeal or amendment by the provisions of this SECTION or any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 9. If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 10. The provisions of this act take effect on January 1, 2009; however, the implementation of the procedures provided for in this act is contingent upon the State Law Enforcement Division's receipt of funds necessary to implement these provisions. Until the provisions of this act are fully funded and executed, implementation of the provisions of this act shall not prohibit the collection and testing of DNA samples by the methods allowed prior to the implementation of this act from persons convicted, adjudicated delinquent, or on probation or parole for those crimes listed in Section 23-3-620.
This web page was last updated on Monday, October 10, 2011 at 1:30 P.M.