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H.89

Introduced by Representatives Voyer of Morristown, Bourdeau of Hyde Park, Freed of Dorset, Hallowell of Burlington, Koch of Barre Town, LaBarge of Grand Isle, Little of Shelburne, Livingston of Manchester, Mazur of South Burlington, Scribner of Middlesex, Sinnott of Bennington, Spaulding of Stowe, Sweetser of Essex, Vinton of Colchester, Walker of Brownington, Westman of Cambridge and Willett of St. Albans City

Referred to Committee on

Date:

Subject: Public safety; corrections; DNA data bank

Statement of purpose: This bill proposes to create a DNA data bank and establish procedures for the withdrawal of blood samples for DNA analysis from persons convicted of violent crimes.

AN ACT RELATING TO A DNA DATA BANK

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 20 V.S.A. chapter 113, subchapter 4 is added to read:

Subchapter 4. DNA Database and Data Bank

§ 1931. POLICY

It is the policy of this state to assist federal, state and local criminal justice and law enforcement agencies in the identification, detection or exclusion of individuals who are subjects of the investigation or prosecution of violent crimes. Identification, detection and exclusion may be facilitated by the DNA analysis of biological evidence left by the perpetrator of a violent crime and recovered from the crime scene. The DNA analysis of biological evidence can also be used to identify missing persons.

§ 1932. DEFINITIONS

As used in this subchapter:

(1) "CODIS" means the FBI’s national DNA identification index system that allows storage and exchange of DNA records submitted by state and local forensic DNA laboratories. The term "CODIS" is derived from Combined DNA Index System.

(2) "Department" means the department of public safety.

(3) "DNA" means deoxyribonucleic acid. DNA encodes genetic information that is the basis of human heredity and forensic identification.

(4) "DNA record" means DNA identification information stored in the state DNA database or CODIS. A DNA record is the result obtained from the DNA typing tests and is referred to as the DNA profile of an individual.

(5) "DNA sample" means a tissue sample provided by any person convicted ofviolent crime or submitted to the laboratory for analysis pursuant to a criminal investigation. The DNA sample may be blood or other tissue type specified by the department.

(6) "FBI" means the Federal Bureau of Investigation.

(7) "Laboratory" means the department of public safety forensic laboratory. The laboratory’s general authority under this act includes specifying procedures for collection and storage of DNA samples.

(8) "Population database" means anonymous DNA records used to assist statistical evaluation.

(9) "State DNA database" means the laboratory DNA identification record system. The state DNA database is a collection of the DNA records related to forensic casework, convicted offenders required to provide a DNA sample under this subchapter, and anonymous DNA records used for protocol development or quality control.

(10) "State DNA data bank" means the repository of DNA samples collected and maintained under the provisions of this subchapter.

(11) "Violent crime" means any of the following offenses:

(A) arson causing death as defined in section 501 of Title 13;

(B) assault and robbery with a dangerous weapon as defined in subsection 608(b) of Title 13;

(C) assault and robbery causing bodily injury as defined in subsection 608(c)of Title 13;

(D) aggravated assault as defined in section 1024 of Title 13;

(E) murder as defined in section 2301 of Title 13;

(F) manslaughter as defined in section 2304 of Title 13;

(G) kidnapping as defined in section 2405 of Title 13 or its predecessor as it was defined in section 2401 of Title 13;

(H) maiming as defined in section 2701 of Title 13;

(I) sexual assault as defined in subdivision 3252(a)(1) or (2) of Title 13 or its predecessor as it was defined in section 3201 of Title 13;

(J) aggravated sexual assault as defined in section 3253 of Title 13;

(K) first degree unlawful restraint as defined in section 2407 of Title 13;

(L) first degree aggravated domestic assault as defined in section 1043 of Title 13 where the defendant causes serious bodily injury to another person;

(M) lewd or lascivious conduct with a child as defined in section 2602 of Title 13 where the child is under the age of 13 years and the defendant is 18 years of age or older.

§ 1933. DNA SAMPLE REQUIRED

(a) The following persons shall submit a DNA sample:

(1) every person convicted in a court in this state of a violent crime on or after July 1, 1997; and

(2) every person who was convicted in a court in this state of a violent crime prior to July 1, 1997 and is confined under the custody of the commissioner of corrections on July 1, 1997, or is on probation or parole subject to the supervision and control of the commissioner of corrections on July 1, 1997.

(b) The DNA sample shall be collected or taken at the receiving correctional facility or at such other place designated by the commissioner of corrections.

(c) Samples from persons who are not sentenced to a term of imprisonment shall be collected or taken at a time and place specified by the commissioner of corrections.

§ 1934. LEAST INTRUSIVE MEANS OF COLLECTION

(a) The DNA sample shall be obtained by the least intrusive means available to obtain a scientifically reliable sample as determined by the department.

(b) If the DNA sample is a blood sample, only a physician, registered nurse, licensed practical nurse, graduate laboratory technician, or phlebotomist may withdraw a blood sample for the purpose of this subchapter.

§ 1935. PROCEDURE IF PERSON REFUSES TO GIVE SAMPLE

(a) If a person who is required to provide a DNA sample under this subchapter refuses to provide the sample, the department may petition the district court for an order requiring the person to provide the sample.

(b) The person who refuses to provide a DNA sample shall be served with a copy of the department’s petition and shall be entitled to be heard by the court, present witnesses and cross-examine the department’s witnesses.

(c) If the court finds that the person who refused to provide a DNA sample is a person required by section 1933 of this subchapter to provide a DNA sample, the court shall issue a written order requiring the person to provide the DNA sample in accordance with the provisions of this subchapter and requiring the person to pay the cost of obtaining the sample as determined by the commissioner of corrections. The court’s order shall also specify the manner in which the DNA sample shall be collected and may authorize law enforcement and correctional personnel to employ reasonable force to collect the DNA sample. No such employee or health care professional shall be criminally or civilly liable for the use of reasonable force.

(d) If the court finds that the person who refused to provide a DNA sample is not a person required by section 1933 of this subchapter to provide a DNA sample, the court shall issue a written order relieving the person of the obligation to provide a DNA sample.

(e) The hearing on the department’s petition shall be held not more than 15 days after the petition is filed with the court.

(f) Appeals from the district court may be taken to the Vermont supreme court pursuant to the Vermont Rules of Appellate Procedure. An order requiring the provision of a DNA sample shall not be stayed pending appeal of the order. If the supreme court reverses a determination that a DNA sample shall be provided, the department shall expunge the DNA sample and DNA record as provided in section 1940 of this subchapter.

§ 1936. LIMITATION OF LIABILITY FOR COLLECTION OF DNA

SAMPLES

No civil or criminal liability shall attach to any person authorized to withdraw blood as a result of the act of collecting DNA samples under this subchapter, provided the DNA samples are collected according to recognized medical procedures. However, no person shall be relieved from liability for negligence in withdrawing of a DNA sample.

§ 1937. AUTHORIZED ANALYSIS OF DNA SAMPLES

Analysis of DNA samples is authorized:

(1) to type the genetic markers from DNA samples for law enforcement identification purposes; and

(2) for protocol development and administrative purposes, including:

(A) development of a population database when personal identifying information is removed;

(B) to support identification protocol development of forensic DNA analysis methods;

(C) for quality control purposes; and

(D) to assist in the identification of human remains.

§ 1938. STORAGE AND USE OF SAMPLES AND RECORDS

(a) A DNA sample obtained pursuant to section 1934 of this subchapter shall be used only for the purposes authorized in section 1937 of this subchapter.

(b) The tissue, fluid, or other substance from which the DNA is extracted shall be usedonly for DNA analysis.

(c) Only DNA samples obtained pursuant to section 1934 of this subchapter shall be stored in the state DNA data bank.

(d) Only DNA records derived from DNA samples that were obtained pursuant to section 1934 of this subchapter shall be stored in the DNA database.

§ 1939. POPULATION DATABASE

(a) The DNA record derived from the DNA samples obtained under this subchapter may be used to develop a population database after all personal identifying information is removed.

(b) Nothing shall prohibit the laboratory from sharing or disseminating population databases with other law enforcement agencies, crime laboratories that serve them, or other third parties whom the laboratory deems necessary to assist the laboratory with statistical analysis of the laboratory’s population databases. The population database may be made available to other agencies participating in CODIS.

§ 1940. EXPUNGEMENT OF RECORDS AND DESTRUCTION OF SAMPLES

If a person’s conviction of a violent crime is reversed and the case is dismissed, the person's DNA record in the state DNA database and CODIS and the person’s DNA sample in the state data bank shall be removed and destroyed. The laboratory shall purge the DNA record and all other identifiable information from the state DNA database and CODIS and destroy the DNA sample stored in the state DNA data bank. If the person has more than one entry in the state DNA database, CODIS, or the state DNA data bank, onlythe entry related to the dismissed case shall be deleted.

§ 1941. CONFIDENTIALITY OF RECORDS

(a) All DNA samples submitted to the laboratory pursuant to this subchapter shall be confidential.

(b) DNA records shall not be used for any purpose other than to facilitate personal identification of an offender; provided that in appropriate circumstances such records may be used to identify missing persons.

(c) Any person who intentionally violates this section shall be imprisoned not more than one year or fined not more than $10,000.00, or both.

§ 1942. ADOPTION OF RULES AND GUIDELINES

(a) The department shall adopt rules governing the procedures to be used in the collection, submission, identification, analysis and storage of DNA samples and the DNA record of DNA samples submitted under this subchapter.

(b) The department shall adopt rules governing the methods of obtaining information from the state database and CODIS, and procedures for verification of the identity and authority of the requester.

(c) The department shall also adopt guidelines to ensure that DNA identification records meet relevant audit standards for forensic DNA laboratories. The laboratory procedures shall include the implementation of DNA quality assurance and proficiency testing standards issued by the FBI director.

Sec. 2. REPORTS

On January 15, 1999, the commissioners of the departments of corrections and public safety shall submit a report to the Senate and House Committees on Judiciary. The report shall address any problems that public safety personnel, judicial officers, court system administrators, corrections personnel, and attorneys for the state and defense encountered in implementing section 1935 of Title 20. The report shall include copies of any trial court or supreme court written decisions, orders, administrative rules, or legislative proposals involving section 1935 of Title 20.

On January 15, 2002, the commissioners of the departments of corrections and public safety shall submit a report on the implementation of this act to the Senate and House Committees on Judiciary. The report shall address the following:

(1) The steps that were taken to enforce this act;

(2) The number of DNA samples taken and the costs incurred;

(3) Any problems that public safety personnel, judicial officers, court system administrators, corrections personnel, and attorneys for the state and defense encountered in implementing this act;

(4) Copies of any trial court or supreme court decisions, orders, administrative rules, or legislative proposals involving this act;

(5) Any changes in technology that would apply to DNA analysis of biological evidence and collection of DNA samples; and

(6) Any recommended changes to the law.