GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2009

H                                                                                                                                                    1

HOUSE BILL 1403

 

 

Short Title:        Collect DNA Sample on Arrest.

(Public)

Sponsors:

Representatives Neumann, Burris-Floyd, McCormick, Tillis (Primary Sponsors);  Avila, Barnhart, Blust, Brubaker, Burr, Current, Folwell, Frye, Glazier, Guice, Hall, Harrison, Hurley, Justice, Justus, Langdon, Lucas, Moore, Randleman, Sager, Starnes, Steen, and Stevens.

Referred to:

Judiciary I, if favorable, Finance.

April 13, 2009

A BILL TO BE ENTITLED

AN ACT to require that a dna sample be taken from any person arrested for committing a felony and to establish the missing persons dna identification system as part of the state's current dna database and dna databank.

The General Assembly of North Carolina enacts:

SECTION 1.  Article 23 of Chapter 15A of the General Statutes is amended by adding a new section to read:

" 15A-502A.  DNA sample.

(a)        The following definitions apply in this section:

(1)        'DNA.' - As defined in G.S. 15A-266.2.

(2)        'DNA Record.' - As defined in G.S. 15A-266.2.

(3)        'DNA Sample.' - As defined in G.S. 15A-266.2.

(4)        'SBI.' - State Bureau of Investigation.

(b)        Unless a DNA sample has previously been obtained by lawful process and stored in the State DNA database, and that sample has not been expunged pursuant to G.S. 15A-148, on or after December 1, 2009, any person who is arrested for committing a felony must provide his or her DNA sample pursuant to this section for DNA analysis and testing.

(c)        It is the duty of the arresting law enforcement officer to obtain the arrested person's DNA sample and to forward the DNA sample to the appropriate laboratory for DNA analysis and testing. A qualified member of the health profession shall take the DNA sample. If the arrested person objects to having a DNA blood sample taken, then a sample of saliva, hair, body tissue, or other biological material that is appropriate for DNA testing shall be taken for the DNA sample, unless provided otherwise by a court order. No unreasonable or unnecessary force shall be used to obtain the DNA sample.

(d)        The DNA record of identification characteristics resulting from the DNA testing and the DNA sample itself shall be stored and maintained by the State Bureau of Investigation in the State DNA Databank pursuant to Article 13 of Chapter 15A of the General Statutes."

SECTION 2.  G.S. 15A-266.2 reads as rewritten:

" 15A-266.2.  Definitions.

As used in this Article, unless another meaning is specified or the context clearly requires otherwise, the following terms have the meanings specified:

(1)        "CODIS" means the FBI's national DNA identification index system that allows the 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)        "DNA" means deoxyribonucleic acid. DNA is located in the nucleus of cells and provides an individual's personal genetic blueprint. DNA encodes genetic information that is the basis of human heredity and forensic identification.

(2a)      "DNA Blood Sample" in this Article means a blood sample provided by any person convicted of offenses covered by this Article or submitted to the SBI Laboratory for analysis pursuant to a criminal investigation. The term also includes a blood sample submitted under the missing persons DNA identification system pursuant to G.S. 15A-270.15.

(3)        "DNA Record" means DNA identification information stored in the State DNA Database or CODIS for the purpose of generating investigative leads or supporting statistical interpretation of DNA test results. The DNA record is the result obtained from the DNA typing tests. The DNA record is comprised of the characteristics of a DNA sample which are of value in establishing the identity of individuals. The results of all DNA identification tests on an individual's DNA sample are also collectively referred to as the DNA profile of an individual.

(4)        "DNA Sample" in this Article means means either: (i) a blood sample as defined by this section, provided by any person convicted of offenses covered by this Article or submitted to the SBI Laboratory for analysis pursuant to a criminal investigation. (ii) a sample of saliva, hair, body tissue, or biological material other than blood that is appropriate for DNA testing or analysis and that is provided by a person arrested for a felony and submitted for DNA analysis by the SBI Laboratory pursuant to G.S. 15A-502A and this Article. The term also includes a sample of saliva, hair, body tissue, or biological material other than blood that is appropriate for DNA testing or analysis submitted under the missing persons DNA identification system pursuant to G.S. 15A-270.15.

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

(6)        "SBI" means the State Bureau of Investigation. The SBI is responsible for the policy management and administration of the State DNA identification record system to support law enforcement, and for liaison with the FBI regarding the State's participation in CODIS.

(7)        "State DNA Database" means the SBI's DNA identification record system to support law enforcement. It is administered by the SBI and provides DNA records to the FBI for storage and maintenance in CODIS. The SBI's DNA Database system is the collective capability provided by computer software and procedures administered by the SBI to store and maintain DNA records related to forensic casework, to convicted offenders required to provide a DNA sample under this Article, and to anonymous DNA records used for research or quality control.

(8)        "State DNA Databank" means the repository of DNA samples collected under the provisions of this Article."

SECTION 3.  G.S. 15A-266.4(a) reads as rewritten:

"(a)       Unless a DNA blood sample has previously been obtained by lawful process and stored in the State DNA database, and that sample has not been expunged pursuant to G.S. 15A-148, on or after December 1, 2003, a person who is convicted of any of the crimes listed in subsection (b) of this section or who is found not guilty of any of these crimes by reason of insanity and committed to a mental health facility in accordance with G.S. 15A-1321 shall have a DNA blood sample drawn upon intake to jail, prison, or the mental health facility. In addition, every person convicted on or after December 1, 2003, of any of these crimes, but who is not sentenced to a term of confinement, shall provide a DNA blood sample as a condition of the sentence. A person who has been convicted and incarcerated as a result of a conviction of one or more of these crimes prior to December 1, 2003, or who was found not guilty of any of these crimes by reason of insanity and committed to a mental health facility in accordance with G.S. 15A-1321 before December 1, 2003, shall have a DNA blood sample drawn before parole or release from the penal system or before release from the mental health facility."

SECTION 4.  G.S. 15A-266.5 reads as rewritten:

" 15A-266.5.  Tests to be performed on blood sample.DNA sample.

(a)        The tests to be performed on each blood DNA sample are:

(1)        To analyze and type the genetic markers contained in or derived from the DNA.

(2)        For law enforcement identification purposes.

(3)        For research and administrative purposes, including:

a.         Development of a population database when personal identifying information is removed.

b.         To support identification research and protocol development of forensic DNA analysis methods.

c.         For quality control purposes.

d.         To assist in the recovery or identification of human remains from mass disasters or for other humanitarian purposes, including identification of missing persons.

(b)        The DNA record of identification characteristics resulting from the DNA testing shall be stored and maintained by the SBI in the State DNA Database. The DNA sample itself will be stored and maintained by the SBI in the State DNA Databank."

SECTION 5.  G.S. 15A-266.6 reads as rewritten:

" 15A-266.6.  Procedures for withdrawal of blood sample for DNA analysis.

(a)        Each DNA blood sample required to be drawn pursuant to G.S. 15A-266.4 from persons who are incarcerated shall be drawn at the place of incarceration. DNA blood samples from persons who are not sentenced to a term of confinement shall be drawn immediately following sentencing. The sentencing court shall order any person not sentenced to a term of confinement to report immediately following sentencing to the location designated by the sheriff. If the sample cannot be taken immediately, the sheriff shall inform the court of the date, time, and location at which the sample shall be taken, and the court shall enter that date, time, and location into its order. A copy of the court order indicating the date, time, and location the person is to appear to have a sample taken shall be given to the sheriff. If a person not sentenced to a term of confinement fails to appear immediately following sentencing or at the date, time, and location designated in the court order, the sheriff shall inform the court of the failure to appear and the court may issue an order to show cause pursuant to G.S. 5A-15 and may issue an order for arrest pursuant to G.S. 5A-16.

(b)        Only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, laboratory technician, phlebotomist, or other health care worker with phlebotomy training shall draw any DNA blood sample to be submitted for analysis. No civil liability shall attach to any person authorized to draw blood by this section as a result of drawing blood from any person if the blood was drawn according to recognized medical procedures. No person shall be relieved from liability for negligence in the drawing of any DNA blood sample.

(c)        The SBI shall provide to the sheriff the materials and supplies necessary to draw a DNA blood sample from a person not sentenced to a term of confinement. Any DNA blood sample drawn from a person not sentenced to a term of confinement shall be taken using the materials and supplies provided by the SBI."

SECTION 6.  The catch line of G.S. 15A-266.7 reads as rewritten:

" 15A-266.7.  Procedures for conducting DNA analysis of blood DNA sample."

SECTION 7.  G.S. 15A-266.8 reads as rewritten:

" 15A-266.8.  DNA database exchange.

(a)        It shall be the duty of the SBI to receive DNA samples, to store, to analyze or to contract out the DNA typing analysis to a qualified DNA laboratory that meets the guidelines as established by the SBI, classify, and file the DNA record of identification characteristic profiles of DNA samples submitted pursuant to G.S. 15A-266.7 G.S. 15A-266.7, 15A-502A, and 15A-270.15 and to make such information available as provided in this section. The SBI may contract out DNA typing analysis to a qualified DNA laboratory that meets guidelines as established by the SBI. The results of the DNA profile of individuals in the State Database shall be made available to local, State, or federal law enforcement agencies, approved crime laboratories which serve these agencies, or the district attorney's office upon written or electronic request and in furtherance of an official investigation of a criminal offense. These records shall also be available upon receipt of a valid court order directing the SBI to release these results to appropriate parties not listed above, when the court order is signed by a superior court judge after a hearing. The SBI shall maintain a file of such court orders.

(b)        The SBI 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 SBI shall create a separate population database comprised of blood DNA samples obtained under this Article, after all personal identification is removed. Nothing shall prohibit the SBI from sharing or disseminating population databases with other law enforcement agencies, crime laboratories that serve them, or other third parties the SBI deems necessary to assist the SBI with statistical analysis of the SBI's population databases. The population database may be made available to and searched by other agencies participating in the CODIS system."

SECTION 8.  G.S. 15A-1382 reads as rewritten:

" 15A-1382.  Reports of disposition; fingerprints.fingerprints and DNA samples.

(a)        When the defendant is fingerprinted pursuant to G.S. 15A-502 prior to the disposition of the case, a report of the disposition of the charges shall be made to the State Bureau of Investigation on a form supplied by the State Bureau of Investigation within 60 days following disposition. When a DNA sample is taken from the defendant pursuant to G.S. 15A-502A prior to the disposition of the case, a report of the disposition of the charges shall be made to the State Bureau of Investigation on a form supplied by the State Bureau of Investigation within 60 days following disposition.

(b)        When a defendant is found guilty of any felony, regardless of the class of felony, a report of the disposition of the charges shall be made to the State Bureau of Investigation on a form supplied by the State Bureau of Investigation within 60 days following disposition. If a convicted felon was not fingerprinted pursuant to G.S. 15A-502 prior to the disposition of the case, his fingerprints shall be taken and submitted to the State Bureau of Investigation along with the report of the disposition of the charges on forms supplied by the State Bureau of Investigation.

(c)        If a convicted felon did not have a DNA blood sample taken pursuant to G.S. 15A-502A prior to the disposition of the case, then a DNA blood sample shall be taken from the felon in accordance with Article 13 of this Chapter and submitted to the State Bureau of Investigation along with the report of the disposition of the charges on forms supplied by the State Bureau of Investigation as provided by Article 13 of this Chapter."

SECTION 9.  G.S. 7B-2201 reads as rewritten:

" 7B-2201.  Fingerprinting and DNA sample from juvenile transferred to superior court.

(a)        When jurisdiction over a juvenile is transferred to the superior court, the juvenile shall be fingerprinted and the juvenile's fingerprints shall be sent to the State Bureau of Investigation.

(b)        When jurisdiction over a juvenile is transferred to the superior court, a DNA sample shall be taken from the juvenile pursuant to G.S. 15A-502A."

SECTION 10.  Article 13 of Chapter 15A of the General Statutes is amended by adding the following new sections to read:

" 15A-270.15.  Missing persons DNA identification system.

(a)        The SBI shall establish and administer a missing persons DNA identification system as part of the State DNA Database and the State DNA Databank. The purpose of the missing persons DNA identification system is to facilitate the use of DNA records by law enforcement agencies and the Chief Medical Examiner in the identification and location of missing and unidentified persons or human remains. The DNA missing persons identification system shall consist of all of the following DNA indexes:

(1)        Unidentified persons.

(2)        Unidentified human remains.

(3)        Relatives of, or known reference samples from, missing persons.

(b)        Samples from unidentified persons or relatives of a missing person shall be provided to the SBI as follows:

(1)        Upon the completion of a permission to search form supplied by the SBI that authorizes the collection of a DNA sample.

(2)        Upon the receipt of a properly executed search warrant.

(3)        Upon the issuance of a court order.

(c)        Samples from unidentified human remains shall be provided by the Chief Medical Examiner.

(d)        Samples of known reference materials from missing persons shall be provided by the investigating law enforcement agency.

(e)        Searches of samples collected pursuant to this section may be made against DNA indexes consisting of any of the following, but shall not be performed against DNA indexes consisting of evidentiary samples resulting from criminal investigations:

(1)        Unidentified persons.

(2)        Unidentified human remains.

(3)        Relatives of, or known reference samples from, missing persons.

(4)        Persons required to provide a DNA sample under G.S. 15A-266.4.

(5)        Persons required to provide a DNA sample under G.S. 15A-502A.

" 15A-270.16.  DNA Identification System Fund created.

(a)        The "DNA Identification System Fund" is established in the Department of Justice. The Fund shall consist of all money received  by appropriation, gift, grant, all money collected pursuant to this section, and all investment income from the Fund. Money and investment income in the Fund at the end of any fiscal year shall not revert to the General Fund but shall remain in the DNA Identification System Fund.  The moneys in the Fund shall be used to assist with the costs of maintaining the DNA Databank established under this Article, collecting and storing DNA samples under this Article, and administering this Article.

(b)        When a person is convicted of an offense listed in G.S. 15A-266.4(b), the court shall assess a fee of one hundred dollars ($100.00) in addition to any other fee, restitution, or fine.  The fee shall be deposited in the DNA Identification System Fund established by this section."

SECTION 11.  This act becomes effective December 1, 2009, and applies to arrests made on or after that date.