The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
Sub. H. B. No. 525 As Reported by the House Criminal Justice Committee
As Reported by the House Criminal Justice Committee
125th General Assembly | Regular Session | 2003-2004 |
| |
Representatives Latta, Faber, McGregor, Hughes, Slaby, Gilb, Schmidt, Jerse, Willamowski, D. Evans
A BILLTo amend sections 109.573, 313.08, 2152.74, 2743.191, 2901.07, 2953.73, 2953.82, and 5120.021 of the Revised Code to require DNA specimen collection from delinquent children and criminal offenders for all felonies; to make other changes relating to the collection and use of DNA specimens; to extend for one year the period of time for certain inmates to request DNA testing; and to clarify the applicability of the provisions of Chapter 5120. of the Revised Code to offenders who committed their offense prior to July 1, 1996, and to those who committed their offense on or after that date. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 109.573, 313.08, 2152.74, 2743.191, 2901.07, 2953.73, 2953.82, and 5120.021 of the Revised Code be amended to read as follows:
Sec. 109.573. (A) As used in this section: (1) "DNA" means human deoxyribonucleic acid. (2) "DNA analysis" means a laboratory analysis of a DNA
specimen to identify DNA characteristics and to create a
DNA
record. (3) "DNA database" means a collection of DNA records
from
forensic casework or from crime scenes, specimens from anonymous
and
unidentified sources, and
records collected pursuant to
sections 2152.74 and 2901.07 of the
Revised Code and a population
statistics database for
determining the frequency of occurrence of
characteristics in DNA
records. (4) "DNA record" means the objective result of a DNA
analysis of a DNA specimen, including representations of
DNA
fragment lengths, digital images of autoradiographs, discrete
allele assignment numbers, and other DNA specimen characteristics
that aid in establishing the identity of an individual. (5) "DNA specimen" includes human blood cells or
physiological
tissues or body fluids. (6) "Unidentified person database" means a collection of DNA
records, and, on and after
May 21, 1998, of fingerprint and
photograph records,
of unidentified human corpses, human remains,
or living individuals. (7) "Relatives of missing persons database" means a
collection
of DNA records of persons
related by consanguinity of
the first degree to a missing
person. (8) "Law enforcement agency" means a police department, the
office of a sheriff, the state highway patrol, a county
prosecuting attorney, or a federal, state, or local governmental
body that enforces criminal laws and that has employees who have
a
statutory power of arrest.
(9) "Administration of criminal justice" means the performance of detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders. "Administration of criminal justice" also includes criminal identification activities and the collection, storage, and dissemination of criminal history record information. (B)(1) The superintendent of the bureau of criminal
identification and investigation may do all of the following: (a) Establish and maintain a state DNA
laboratory to
perform
DNA analyses of DNA specimens; (b) Establish and maintain a DNA
database; (c) Establish and maintain an unidentified person
database
to aid in the establishment of the identity of unknown human
corpses,
human remains, or living individuals; (d) Establish and maintain a relatives of missing
persons
database for comparison with the unidentified person
database to
aid in the establishment of the identity of unknown
human corpses,
human remains, and living individuals. (2) If the bureau of criminal identification and
investigation establishes
and maintains a DNA laboratory and a DNA
database, the
bureau may use or disclose information regarding DNA
records for the
following purposes: (a) The bureau may disclose information to a law enforcement
agency for
purposes of identification the administration of criminal justice. (b) The bureau shall disclose pursuant to a court
order
issued under section 3111.09 of the Revised Code any information
necessary to determine the existence of a parent
and child
relationship in an action brought under sections 3111.01 to
3111.18
of the Revised Code. (c) The bureau may use or disclose information from
the
population statistics database, for identification research
and
protocol development, or for quality control purposes. (3) If the bureau of criminal identification and
investigation
establishes and maintains a relatives of missing
persons
database, all of the following apply: (a) If a person has disappeared and has been
continuously
absent from the person's place of last domicile for
a thirty-day
or longer period of time without being heard from during the
period, persons related by consanguinity of the first
degree to
the missing person may submit to the
bureau a DNA specimen, the
bureau may include the
DNA record of the specimen
in the relatives
of missing persons database,
and, if the bureau does not include
the DNA record of the
specimen in the relatives of missing persons
database, the bureau shall retain
the DNA record for future
reference and
inclusion as appropriate in that database. (b) The bureau shall not charge a fee for the
submission of
a DNA
specimen pursuant to division (B)(3)(a) of this
section. (c)
If the DNA specimen submitted pursuant to division
(B)(3)(a) of this section is collected by withdrawing blood from
the person or a similarly invasive procedure, a physician,
registered nurse, licensed practical nurse,
duly licensed
clinical
laboratory technician, or other qualified
medical practitioner
shall
conduct the collection procedure for
the DNA specimen
submitted
pursuant to division
(B)(3)(a) of this
section and shall
collect the
DNA specimen in a medically
approved
manner.
If the
DNA specimen is collected by swabbing for buccal cells or a
similarly noninvasive procedure, division (B)(3)(c) of this
section does not require that the DNA specimen be collected by a
qualified medical practitioner of that nature. No later than
fifteen days after the date of
the
collection of the DNA
specimen,
the person conducting the
DNA
specimen collection
procedure shall
cause the DNA
specimen to be
forwarded to the bureau of criminal
identification and
investigation in accordance with procedures
established by the
superintendent of the bureau under division
(H)
of this section.
The bureau
may provide the specimen vials,
mailing tubes, labels,
postage, and instruction needed for the
collection and
forwarding
of the DNA specimen
to the bureau. (d) The superintendent, in the superintendent's
discretion,
may compare DNA
records in the relatives of missing persons
database with the
DNA records in the unidentified person database. (4) If the bureau of criminal identification and
investigation establishes and maintains an unidentified person
database and if the superintendent of the bureau
identifies a
matching DNA record for the DNA record of a
person or deceased
person whose
DNA record is contained in the
unidentified person
database, the superintendent shall inform
the coroner who
submitted or the law enforcement agency that submitted the
DNA
specimen to the bureau of
the match and, if possible, of the
identity of the unidentified person. (5) The bureau of criminal identification and investigation
may enter into a contract with a qualified public or private
laboratory to
perform DNA analyses, DNA specimen maintenance,
preservation, and storage, DNA record keeping, and other duties
required of the bureau under this section. A public or private
laboratory
under contract with the bureau shall follow quality
assurance and privacy
requirements established by the
superintendent of the bureau. (C) The superintendent of the bureau of criminal
identification
and investigation shall establish procedures for
entering into the
DNA
database the DNA records submitted pursuant
to sections 2152.74 and
2901.07 of the Revised Code and for
determining an order of priority for entry
of the
DNA records
based on the types of offenses committed by the persons
whose
records are submitted and the available resources of the bureau. (D) When a DNA record is derived from a DNA
specimen
provided pursuant to section 2152.74 or 2901.07 of the Revised
Code,
the bureau of
criminal identification and investigation
shall attach to the DNA
record personal identification information
that identifies the person from
whom the DNA specimen was taken.
The personal identification
information may include the subject
person's fingerprints and any other
information the bureau
determines necessary. The DNA
record and personal identification
information attached to it shall be used
only for the purpose of
personal identification or for a purpose specified in
this
section. (E) DNA records, DNA specimens,
fingerprints, and
photographs that the bureau of criminal
identification and
investigation receives pursuant to this section and sections
313.08, 2152.74, and 2901.07 of the Revised
Code and personal
identification information attached to a
DNA record are not public
records under section 149.43 of the
Revised Code. (F) The bureau of criminal identification and investigation
may
charge a reasonable fee for providing information pursuant to
this section to
any law enforcement agency located in another
state. (G)(1) No person who because of the person's employment or
official
position has access to a DNA specimen, a DNA record, or
other information contained in the DNA database that identifies an
individual shall knowingly disclose that specimen, record, or
information to
any person or agency not entitled to receive it or
otherwise
shall misuse that specimen, record, or information. (2) No person without authorization or privilege to obtain
information contained in the DNA database that identifies an
individual person
shall purposely obtain that information. (H) The superintendent of the bureau of criminal
identification
and investigation shall establish procedures for
all of the
following: (1) The forwarding to the bureau of DNA specimens collected
pursuant to division (H) of this section and sections 313.08,
2152.74, and 2901.07
of the Revised Code and of fingerprints and
photographs collected pursuant
to section 313.08 of the Revised
Code; (2) The collection, maintenance, preservation, and analysis
of
DNA specimens; (3) The creation, maintenance, and operation of the DNA
database; (4) The use and dissemination of information from the DNA
database; (5) The creation, maintenance, and operation of the
unidentified person database; (6) The use and dissemination of information from the
unidentified person database; (7) The creation, maintenance, and operation of the
relatives of missing persons database; (8) The use and dissemination of information from the
relatives of missing persons database; (9) The verification of entities requesting DNA records and
other DNA information from the bureau and the authority of the
entity
to receive the information; (10) The operation of the bureau and responsibilities of
employees of the bureau with respect to the activities described
in this
section. (I) In conducting DNA analyses of DNA specimens, the state DNA laboratory and any laboratory with which the bureau has entered into a contract pursuant to division (B)(5) of this section shall give DNA analyses of DNA specimens that relate to ongoing criminal investigations or prosecutions priority over DNA analyses of DNA specimens that relate to applications made pursuant to section 2953.73 or 2953.82 of the Revised Code.
Sec. 313.08. (A) In counties in which a county morgue is
maintained, the coroner
shall be the official custodian of the morgue. In all cases of the finding of the body or remains of a deceased
person within a county in which a county morgue is
maintained, when the identity of the deceased person is
unknown, or the deceased person's relatives or other persons
entitled to the custody of the body or remains of the deceased person are unknown
or not present, the body or remains shall be removed to the county
morgue, where it shall be held for
identification and disposal. (B) If the body or remains of a deceased person is are not
identified, a coroner shall do all of the following prior to
disposing of the body or remains: (1) Take the fingerprints of the body or remains of the deceased
person, or cause the same to be taken, according to the
fingerprint system of identification on the forms furnished by
the superintendent of the bureau of criminal identification and
investigation; (2) Take or cause to be taken one or more photographs of the body or remains of the
deceased person; (3) Collect in a medically approved manner a
DNA specimen from the body or remains of
the deceased person; (4) Promptly cause the fingerprints, the photographs, and the
DNA specimen
to be forwarded to the bureau of criminal identification and
investigation for inclusion in the unidentified person database
in accordance with procedures established by the superintendent
of the bureau under division (H) of section 109.573 of the Revised
Code. The bureau shall provide
the fingerprint forms, specimen vials, mailing tubes, labels,
postage, and instruction needed for the collection and
forwarding to the bureau of the fingerprints and the
DNA specimen and for the forwarding to the bureau of the photographs. (C) Upon the request of
a coroner who has the duty to take, or cause the taking of, fingerprints and
photographs under divisions (B)(1) and (2) of
this section, the bureau of criminal identification and investigation shall
take, or assist in the taking of, the required fingerprints and
photographs. (D) As used in this section, "DNA specimen" and
"unidentified person database" have the same meanings as in
section 109.573 of the Revised Code.
Sec. 2152.74. (A) As used in this section,
"DNA
analysis"
and "DNA specimen" have the same meanings as in section
109.573 of
the Revised Code. (B)(1) A child who is adjudicated a delinquent child for
committing an act
listed in division (D) of this section and who
is committed to the custody of
the department of youth services,
placed in a detention facility or district detention facility
pursuant to division (A)(3) of section 2152.19 of the Revised
Code, or
placed in a school, camp, institution,
or other
facility for delinquent
children described in division
(A)(2) of
section 2152.19 of the
Revised Code
shall submit to a DNA
specimen collection procedure
administered by the director of
youth services
if committed to the
department or by the chief
administrative
officer of the
detention facility, district
detention facility, school,
camp, institution, or other facility
for
delinquent children to
which the child was committed
or in
which the child was placed. If the
court commits the child to
the
department of youth services, the
director of youth services
shall
cause the DNA specimen to be
collected from the child during
the
intake process at an institution
operated by or under the
control
of the department. If the
court commits the child to
or places
the child in a
detention facility, district detention facility,
school, camp, institution, or other
facility for delinquent
children, the chief administrative
officer of the
detention
facility, district detention facility, school, camp,
institution,
or facility to which
the child is committed
or in which the child
is placed shall
cause the
DNA specimen to be collected
from the
child during the
intake process for the
detention facility,
district detention facility, school, camp,
institution, or
facility. In
accordance with division (C) of this section,
the
director or the
chief administrative officer
shall cause the
DNA
specimen to be
forwarded to
the bureau of criminal identification
and
investigation no later
than fifteen days after the date of the
collection of the
DNA specimen. The DNA specimen shall be
collected
from the child in accordance with division
(C) of this
section. (2) If a child is adjudicated a delinquent child for
committing an act
listed in division (D) of this section, is
committed to
or placed in the
department of youth
services, a
detention facility or district detention facility, or
a school,
camp, institution, or other facility for
delinquent children, and
does not submit to a DNA
specimen collection
procedure pursuant to
division (B)(1) of this section, prior to the child's
release from
the custody of the department of
youth services, from the custody
of the detention facility or district detention facility, or from
the
custody of the school, camp,
institution, or facility, the
child
shall submit to, and the
director of youth services or the
chief
administrator of the
detention facility, district detention
facility, school, camp, institution, or facility to
which the
child is
committed
or in which the child was placed shall
administer, a DNA specimen
collection
procedure at the institution
operated by or under the
control of
the department of youth
services or at the
detention facility, district detention
facility, school,
camp, institution, or
facility to which the
child is committed
or in which the child was placed.
In
accordance
with
division (C) of this section, the director or
the
chief
administrative officer shall cause the DNA
specimen to
be
forwarded to the bureau of criminal identification and
investigation no later than fifteen days after the date of the
collection of
the DNA specimen. The DNA specimen shall be
collected in
accordance with division (C) of this section. (C)
If the DNA specimen is collected by withdrawing blood
from the child or a similarly invasive procedure, a physician,
registered nurse,
licensed practical nurse,
duly licensed clinical
laboratory technician, or
other qualified
medical practitioner
shall collect in a medically approved
manner
the DNA specimen
required to be collected pursuant to division
(B)
of this section.
If the DNA specimen is collected by swabbing for buccal cells or a
similarly noninvasive procedure, this section does not require
that the DNA specimen be collected by a qualified medical
practitioner of that nature. No later than fifteen days after the
date of
the
collection of the DNA specimen, the
director of youth
services or
the chief
administrative officer of the
detention
facility, district detention facility, school, camp,
institution,
or
other facility for delinquent children to which
the child is
committed
or in which the child was placed shall cause the DNA
specimen to be
forwarded to the
bureau of criminal
identification
and
investigation in accordance
with procedures established by the
superintendent
of the bureau
under division (H) of section 109.573
of
the Revised Code. The
bureau shall provide the
specimen vials,
mailing tubes, labels,
postage, and instruction
needed for the
collection and
forwarding
of the DNA specimen to the bureau. (D) The director of youth services and the chief
administrative
officer of a
detention facility, district detention
facility, school, camp, institution, or other
facility for
delinquent
children shall cause a DNA specimen to be
collected in
accordance
with divisions (B) and (C) of this section
from each
child
in its custody who is adjudicated a delinquent
child for
committing any
of the following
acts: (1) A violation of section 2903.01, 2903.02,
2903.11,
2905.01,
2907.02, 2907.03, 2907.05,
2911.01, 2911.02,
2911.11,
or
2911.12 of the Revised Code An act that would be a felony if committed by an adult; (2) A violation of section 2907.12 of the Revised Code as it
existed prior to
September 3, 1996; (3) An attempt to commit a violation of section
2903.01,
2903.02, 2907.02,
2907.03,
or
2907.05 of the Revised Code or to
commit a violation
of
section 2907.12 of the Revised Code as it
existed prior to
September 3,
1996;
(4) A
violation of any law that would be a misdemeanor if committed by an adult and that arose out of the same
facts
and
circumstances and
same act as did a charge against the
child
of a violation
of section 2903.01, 2903.02,
2905.01,
2907.02,
2907.03,
2907.05,
or
2911.11 of the Revised
Code
that previously
was dismissed or
amended or as did a charge
against the
child of a
violation of
section 2907.12 of the Revised
Code as it existed
prior to
September 3, 1996, that previously was
dismissed or
amended;
(5)(3) A violation of section 2905.02 or 2919.23 of the
Revised
Code that would be a misdemeanor if committed by an adult and that would have been a
violation of section 2905.04 of the
Revised Code as it existed prior to July
1, 1996, had the
violation been committed prior to that date;
(6) A felony violation of any law that arose out of the same
facts and circumstances and same act as did a charge against the
child of a violation of section 2903.11, 2911.01, 2911.02, or
2911.12 of the Revised Code that previously was dismissed or
amended;
(7) A violation of section 2923.01 of the Revised Code
involving a conspiracy to commit a violation of section 2903.01,
2903.02, 2905.01, 2911.01, 2911.02, 2911.11, or 2911.12 of the
Revised Code;
(8)(4) A violation of section 2923.03 of the Revised Code
involving complicity in committing a violation of section 2903.01,
2903.02, 2903.11, 2905.01, 2907.02, 2907.03, 2907.04, 2907.05,
2911.01, 2911.02, 2911.11, or 2911.12 of the Revised Code or a
violation of section 2907.12 of the Revised Code as it existed
prior to September 3, 1996 that would be a misdemeanor if committed by an adult.
(E) The director of youth services and the chief
administrative
officer of a
detention facility, district detention
facility, school, camp, institution, or other
facility for
delinquent
children is not required to comply with
this section
in
relation to the following acts until the
superintendent
of the
bureau of criminal
identification and
investigation gives agencies
in the
juvenile
justice system, as
defined in section 181.51 of
the Revised Code,
in
the state
official notification that the
state DNA laboratory
is prepared to
accept DNA
specimens
of that
nature:
(1) A violation of section 2903.11, 2911.01, 2911.02, or
2911.12 of the Revised Code;
(2) An attempt to commit a violation of section 2903.01 or
2903.02 of the Revised Code;
(3) A felony violation of any law that arose out of the same
facts
and circumstances and same act as did a charge against the
child
of a violation of section 2903.11, 2911.01, 2911.02, or
2911.12 of
the Revised Code that previously was dismissed or
amended;
(4) A violation of section 2923.01 of the Revised Code
involving a conspiracy to commit a violation of section 2903.01,
2903.02, 2905.01, 2911.01, 2911.02, 2911.11, or 2911.12 of the
Revised Code;
(5) A violation of section 2923.03 of the Revised Code
involving complicity in committing a violation of section 2903.01,
2903.02, 2903.11, 2905.01, 2907.02, 2907.03, 2907.04, 2907.05,
2911.01, 2911.02, 2911.11, or 2911.12 of the Revised Code or a
violation of section 2907.12 of the Revised Code as it existed
prior to September 3, 1996.
Sec. 2743.191. (A)(1) There is hereby created in the state
treasury the reparations fund, which shall be used only for the
following purposes: (a) The
payment of awards of reparations that are granted by
the attorney
general; (b) The
compensation of any
personnel needed by the attorney
general to
administer sections
2743.51 to 2743.72 of the Revised
Code; (c) The compensation of
witnesses as provided in division (J)
of section 2743.65 of the
Revised Code; (d) Other administrative costs of hearing and
determining
claims for an award of reparations by the attorney general; (e) The costs of
administering sections 2907.28 and 2969.01
to 2969.06 of the
Revised Code; (f) The costs of investigation and decision-making as
certified by the
attorney general; (g) The provision of state financial assistance to
victim
assistance programs in accordance with sections 109.91 and
109.92
of the Revised Code; (h) The costs of paying the expenses
of sex offense-related
examinations and antibiotics pursuant to
section 2907.28 of the
Revised Code; (i) The cost of printing and distributing
the pamphlet
prepared by the attorney general pursuant to section
109.42 of the
Revised Code; (j) Subject to division (D) of
section 2743.71 of the Revised
Code, the costs associated with
the printing and providing of
information cards or other printed
materials to law enforcement
agencies and prosecuting authorities
and with publicizing the
availability of awards of reparations
pursuant to section 2743.71
of the Revised Code; (k) The payment of costs of administering a DNA specimen
collection procedure pursuant to section sections 2152.74 of the Revised
Code in relation to any act identified in division (E)(1) to (5)
of that section and
pursuant to section 2901.07 of the Revised
Code in relation to any act identified in division (E)(1) to (5)
of that section, of performing DNA analysis of those
DNA
specimens, and of entering the resulting DNA records regarding
those analyses into the
DNA database pursuant to section 109.573
of the Revised Code;
(l) The payment of actual costs associated with initiatives by the attorney general for the apprehension, prosecution, and accountability of offenders, and the enhancing of services to crime victims. The amount of payments made pursuant to division (A)(1)(l) of this section during any given fiscal year shall not exceed five per cent of the balance of the reparations fund at the close of the immediately previous fiscal year. (2) All costs paid
pursuant to section 2743.70 of the Revised
Code, the
portions of license reinstatement fees mandated by
division
(F)(2)(b) of section 4511.191 of the Revised Code to be
credited
to the fund, the portions of the proceeds of the sale of
a
forfeited vehicle specified in division (C)(2) of section
4503.234 of the Revised Code, payments
collected by the department
of rehabilitation and correction from prisoners
who voluntarily
participate in an approved work and training program pursuant
to
division (C)(8)(b)(ii) of section 5145.16
of the Revised Code, and
all moneys
collected by the
state pursuant to its right of
subrogation provided in section
2743.72 of the Revised Code shall
be deposited in the fund. (B) In making an award of reparations, the attorney
general
shall
render the award against the state. The award
shall be
accomplished only through the following procedure,
and the
following procedure
may be enforced by writ of mandamus directed
to the appropriate
official: (1) The attorney general shall provide
for payment of the
claimant or providers in the amount
of the award only if the amount of the award is fifty dollars or more. (2) The expense shall be charged against all available
unencumbered moneys in the fund. (3) If sufficient
unencumbered moneys do not exist in the
fund, the attorney
general shall make
application for payment of
the award out of the emergency
purposes account or any other
appropriation for emergencies or
contingencies, and payment out of
this account or other
appropriation shall be authorized if there
are sufficient moneys
greater than the sum total of then pending
emergency purposes
account requests or requests for releases from
the other
appropriations. (4) If sufficient moneys do not exist in the account or
any
other appropriation for emergencies or contingencies to pay
the
award, the attorney general shall request the
general assembly to
make an appropriation sufficient to pay the award, and no payment
shall be made until the appropriation has been made. The
attorney
general shall make this appropriation request
during the current
biennium and during each succeeding biennium until a sufficient
appropriation is made. If, prior to the time that an
appropriation is made by the general assembly pursuant to this
division, the fund has sufficient unencumbered funds to pay the
award or part of the award, the available funds shall be used to
pay the award or part of the award, and the appropriation request
shall be amended to request only sufficient funds to pay that
part
of the award that is unpaid. (C) The attorney general shall not make payment on a
decision
or order granting an award until all appeals
have been
determined and all rights to appeal exhausted, except
as otherwise
provided in this section. If any party to a claim
for an award of
reparations appeals from only a portion of an
award, and a
remaining portion provides for the payment of money
by the state,
that part of the award calling for the payment of money by the
state and not a subject of the appeal shall be processed for
payment as described in this section. (D) The attorney general shall prepare itemized bills for
the costs of
printing and
distributing the pamphlet the attorney
general prepares
pursuant to section 109.42 of the Revised Code.
The itemized bills shall set
forth the name
and address of the
persons owed the amounts set forth in them.
(E) As used in this section, "DNA analysis" and "DNA
specimen"
have the same meanings as in section 109.573 of the
Revised Code.
Sec. 2901.07. (A) As used in this section: (1)
"DNA analysis" and
"DNA specimen" have the same
meanings
as in section 109.573 of the Revised Code. (2)
"Jail" and
"community-based correctional facility" have
the
same meanings as in section 2929.01 of the Revised Code. (3)
"Post-release control" has the same meaning as in
section
2967.01
of the Revised Code. (B)(1) A person who is convicted of or pleads
guilty to a
felony offense listed in division
(D) of this section and who is
sentenced to a prison term or to a community residential sanction
in a jail
or community-based correctional facility pursuant to
section 2929.16 of the
Revised Code, and
a person who is convicted
of or pleads guilty to a misdemeanor offense listed
in division
(D) of this section and who is sentenced to a term of
imprisonment
shall submit to a
DNA specimen collection
procedure administered
by the director of rehabilitation and
correction or the chief
administrative officer of the jail or other
detention facility in
which the person is serving the
term of imprisonment. If the
person serves the prison
term in a state correctional institution,
the
director of rehabilitation and correction shall cause the
DNA
specimen to be collected from the person during the intake
process
at the reception
facility designated by the director. If the
person serves the
community residential sanction or term of
imprisonment in a jail, a
community-based correctional facility,
or another county, multicounty,
municipal,
municipal-county, or
multicounty-municipal detention facility, the chief
administrative
officer of the jail,
community-based correctional facility, or
detention
facility shall cause the
DNA specimen to be collected
from the person during the intake
process at the jail,
community-based correctional facility, or
detention facility. In
accordance with
division (C) of this section, the director or
the
chief administrative officer shall cause the
DNA specimen to be
forwarded to the bureau of criminal identification
and
investigation no later than fifteen days after the date of the
collection
of the DNA specimen. The DNA specimen shall be
collected in
accordance with division (C) of this section. (2) If a person is convicted of or pleads guilty to
an a felony offense or a misdemeanor
offense listed in division (D) of this section, is
serving
a
prison term, community residential sanction, or term of
imprisonment
for that offense, and does not provide a DNA
specimen
pursuant to division (B)(1) of this section, prior to the person's
release from the prison term, community residential sanction, or
imprisonment, the
person shall submit to, and the director of
rehabilitation and
correction or the chief administrative officer
of the jail, community-based
correctional facility, or detention
facility in which the person is serving
the
prison term, community
residential sanction, or term of imprisonment
shall administer, a
DNA specimen collection
procedure at the state correctional
institution, jail, community-based
correctional facility, or
detention facility in which the person is serving
the prison term,
community
residential sanction, or term of imprisonment. In
accordance with division
(C) of this section, the director or
the
chief administrative officer shall cause the DNA specimen to be
forwarded to the
bureau of criminal identification and
investigation no later than fifteen days
after the date of the
collection of the DNA specimen. The
DNA specimen shall be
collected in accordance with division (C)
of this section. (3)(a) If a person
sentenced to a term of imprisonment or
serving a
prison term
or community
residential sanction for
committing an is convicted of or pleads guilty to a felony offense or a misdemeanor
offense listed in division (D) of this
section and the person is on
probation, is
released on parole,
under
transitional
control, or
on another type
of release, or is on community control, on
post-release
control,
if the
person is or under any other type of supervised release
under
the supervision of
a probation
department or
the
adult parole
authority, if the person shall submit to a DNA specimen collection procedure administered by the chief administrative officer of the probation department or the adult parole authority. The DNA specimen shall be collected in accordance with division (C) of this section.
(b) If the person is
sent to
jail or is
returned to a jail,
community-based
correctional
facility, or
state correctional
institution for a violation
of
the
terms and
conditions of the
probation,
parole,
transitional
control, other
release, or
post-release
control, if the person was
or will be
serving
a
term
of imprisonment, prison term, or
community
residential
sanction
for
committing an a felony offense or for committing a misdemeanor offense listed in
division
(D) of this section,
and if the person did
not provide a
DNA
specimen
pursuant to
division (B)(1) or,
(2) or (3)(a) of this section,
the
person shall submit
to, and the
director of rehabilitation and
correction or the chief
administrative
officer of the jail or
community-based correctional
facility shall
administer, a DNA
specimen collection
procedure at
the jail, community-based
correctional facility, or state
correctional institution in which
the person is serving
the
term
of imprisonment, prison term, or
community residential
sanction.
In accordance with
division (C) of
this section,
the
director or
the chief
administrative officer
shall cause the
DNA
specimen to
be forwarded to
the bureau of
criminal identification
and
investigation no later
than fifteen
days after the date of the
collection of the
DNA specimen. The
DNA specimen shall be
collected from the
person in accordance with
division
(C) of this
section.
(4) If a person is convicted of or pleads guilty to a felony offense or a misdemeanor offense listed in division (D) of this section, the person is not sentenced to a prison term, a community residential sanction in a jail or community-based correctional facility, a term of imprisonment, or any type of supervised release under the supervision of a probation department or the adult parole authority, and the person does not provide a DNA specimen pursuant to division (B)(1), (2), (3)(a), or (3)(b) of this section, the sentencing court shall order the person to report to the county probation department immediately after sentencing to submit to a DNA specimen collection procedure administered by the chief administrative officer of the county probation office. If the person is incarcerated at the time of sentencing, the person shall submit to a DNA specimen collection procedure administered by the director of rehabilitation and correction or the chief administrative officer of the jail or other detention facility in which the person is incarcerated. The DNA specimen shall be collected in accordance with division (C) of this section. (C)
If the DNA specimen is collected by withdrawing blood
from the person or a similarly invasive procedure, a physician,
registered
nurse, licensed practical nurse,
duly licensed clinical
laboratory technician,
or other qualified
medical practitioner
shall collect in a medically approved
manner
the DNA specimen
required to be collected pursuant to division
(B)
of this section.
If the DNA specimen is collected by swabbing for buccal cells or a
similarly noninvasive procedure, this section does not require
that the DNA specimen be collected by a qualified medical
practitioner of that nature. No later than fifteen days after the
date of
the
collection of the DNA specimen, the director of
rehabilitation
and
correction or the chief administrative officer
of the jail,
community-based correctional facility, or other
county,
multicounty,
municipal, municipal-county, or
multicounty-municipal
detention facility,
in which the person is
serving the prison
term,
community residential sanction, or term
of imprisonment
shall cause the DNA specimen to be forwarded to
the bureau of
criminal identification and investigation in
accordance with
procedures
established by the superintendent
of
the bureau under
division (H) of section 109.573 of the
Revised
Code. The bureau
shall provide the
specimen vials, mailing tubes,
labels, postage,
and instructions needed for
the collection and
forwarding of the
DNA specimen to the bureau. (D) The director of rehabilitation and correction and, the
chief
administrative officer of the jail, community-based
correctional facility,
or other county, multicounty, municipal,
municipal-county, or multicounty-municipal detention facility, or the chief administrative officer of a county probation department or the adult parole authority
shall cause a
DNA specimen to be collected in
accordance
with
divisions (B) and (C) of this section from a person in
its custody or under its supervision
who is convicted of or pleads guilty to
any felony offense or to any of the
following misdemeanor
offenses: (1) A misdemeanor violation, an attempt to commit a misdemeanor violation, or complicity in committing a misdemeanor violation of section 2903.01, 2903.02,
2903.11,
2905.01,
2907.02, 2907.03, 2907.04, 2907.05,
2911.01, 2911.02,
2911.11, or 2911.12 of the
Revised
Code; (2) A violation of section 2907.12 of the Revised Code as it
existed prior to
September 3, 1996; (3) An attempt to commit a violation of section
2903.01,
2903.02, 2907.02,
2907.03, 2907.04, or 2907.05 of the Revised Code
or to commit a
violation of section 2907.12 of the Revised Code as
it existed
prior to
September 3, 1996;
(4) A misdemeanor
violation of any law that arose out of the same
facts
and
circumstances and
same act as did a charge against the
person
of a violation of section
2903.01,
2903.02,
2905.01,
2907.02,
2907.03, 2907.04, 2907.05,
or
2911.11 of the
Revised Code
that
previously was
dismissed or
amended or as did a charge against the
person of a
violation of
section 2907.12 of the Revised Code
as it
existed
prior to
September 3,
1996, that previously was dismissed
or
amended;
(5)(3) A misdemeanor violation of section 2905.02 or 2919.23 of the
Revised
Code that would
have been a
violation of section 2905.04 of the
Revised Code as it existed prior to July
1,
1996, had it been
committed prior to that date;
(6)(4) A sexually oriented offense or a child-victim oriented offense, both as defined in section
2950.01 of the
Revised Code, that is a misdemeanor, if, in relation to that offense, the
offender
has been adjudicated a sexual predator or a, child-victim predator, both habitual sex offender, or habitual child-victim offender, all as
defined in
section 2950.01 of the Revised Code;
(7) A felony violation of any law that arose out of the same
facts and circumstances and same act as did a charge against the
person of a violation of section 2903.11, 2911.01, 2911.02, or
2911.12 of the Revised Code that previously was dismissed or
amended;
(8)
A conspiracy to commit a violation of section 2903.01,
2903.02, 2905.01, 2911.01, 2911.02, 2911.11, or 2911.12 of the
Revised Code;
(9) Complicity in committing a violation of section 2903.01,
2903.02, 2903.11, 2905.01, 2907.02, 2907.03, 2907.04, 2907.05,
2911.01, 2911.02, 2911.11, or 2911.12 of the Revised Code or a
violation of section 2907.12 of the Revised Code as it existed
prior to September 3, 1996.
(E) The director of rehabilitation and correction or a chief
administrative officer of a jail, community-based correctional
facility, or
other detention facility described
in division (B) of
this section
in relation to the following offenses
is not required
to comply with this section until the
superintendent of the
bureau
of criminal identification and
investigation gives agencies in the
criminal justice system, as
defined in section 181.51 of the
Revised Code, in
the state
official notification that the state
DNA laboratory is
prepared to
accept DNA specimens
of that nature:
(1) A violation of section 2903.11, 2911.01, 2911.02, or
2911.12 of the Revised Code;
(2) An attempt to commit a violation of section 2903.01 or
2903.02 of the Revised Code;
(3) A felony violation of any law that arose out of the same
facts
and circumstances and same act as did a charge against the
person
of a violation of section 2903.11, 2911.01, 2911.02, or
2911.12
of the Revised Code that previously was dismissed or
amended;
(4) A conspiracy to commit a violation of section 2903.01,
2903.02, 2905.01, 2911.01, 2911.02, 2911.11, or 2911.12 of the
Revised Code;
(5) Complicity in committing a violation of section 2903.01,
2903.02, 2903.11, 2905.01, 2907.02, 2907.03, 2907.04, 2907.05,
2911.01, 2911.02, 2911.11, or 2911.12 of the Revised Code or a
violation of section 2907.12 of the Revised Code as it existed
prior to September 3, 1996.
Sec. 2953.73. (A) An eligible inmate who wishes to
request DNA testing to be conducted under sections 2953.71 to
2953.81 of the Revised Code shall submit an application for
DNA
testing on a form prescribed by the attorney general for this
purpose and shall submit the form to the court of common pleas
that sentenced the inmate for the
offense for which the inmate is an eligible inmate and is
requesting DNA testing.
The
eligible inmate shall submit the
application to that court of common pleas not
later
than
one year two years after the effective date of this section October 29, 2003. No court of common pleas shall accept an application
under this section after the expiration of the period of time
specified
in this division. (B) If an eligible inmate submits an application for DNA
testing under division (A) of this section, upon the submission of
the application, all of the following apply: (1) The eligible inmate shall serve a copy of the application on the prosecuting attorney and the
attorney general. (2) The application shall be assigned to the judge of that
court of common pleas who was the trial judge in the case in which the eligible inmate was convicted of the offense for which the inmate is requesting DNA testing, or, if that judge no longer is a judge of that court, it shall be assigned according to court rules. The judge to whom the application is
assigned shall decide the application. The application shall become part of the file in the case. (C) If an eligible inmate submits an application for DNA
testing under division (A) of this section, regardless of whether the inmate has commenced any federal habeas corpus proceeding relative to the
case in which the inmate was convicted of the offense for which
the inmate is an eligible inmate and is requesting DNA testing,
any response to the application by the prosecuting attorney or the attorney general shall be filed not later than forty-five days after the date on which the eligible inmate submits the application. The prosecuting attorney or
the attorney general, or both, may, but are not required to, file a response
to the application. If the prosecuting attorney or the attorney general files a response under this division, the prosecuting attorney or attorney general, whoever filed the response, shall serve a copy of the response on the eligible inmate. (D) If an eligible inmate submits an application for DNA
testing under division (A) of this section, the court
shall make
the determination as to whether the
application should be accepted
or rejected. The court shall expedite its review of
the application. The
court shall make the determination in accordance with the
criteria
and procedures set forth in sections 2953.74 to 2953.81
of the
Revised Code and, in making the determination, shall
consider the
application, the supporting affidavits, and the documentary evidence and, in addition to those materials, shall consider all the files and records pertaining to the proceedings against the applicant, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript and all responses to the application
filed under
division (C) of this section by a prosecuting attorney
or the
attorney general, unless the application and the files and records show the applicant is not entitled to DNA testing, in which case the application may be denied. The court is not required to conduct an evidentiary hearing in conducting its review of, and in making its determination as to whether to accept or reject, the application. Upon making its determination, the
court shall
enter a judgment and order that either accepts or
rejects the application and that includes
within the judgment and order the
reasons for the acceptance or rejection as applied to the criteria and procedures set forth in sections 2953.71 to 2953.81 of the Revised Code. The court shall send a copy of the
judgment and order to the eligible
inmate who filed it, the prosecuting
attorney, and the attorney
general. (E) A judgment and order of a court entered under
division (D) of this
section is appealable only as provided in this division. If an eligible inmate submits an application for DNA testing under section 2953.73 of the Revised Code and the court of common pleas rejects the application under division (D) of this section, one of the following applies: (a)(1) If the inmate was sentenced to death for the offense for which the inmate claims to be an eligible inmate and is requesting DNA testing, the inmate may seek leave of the supreme court to appeal the rejection to the supreme court. Courts of appeals do not have jurisdiction to review any rejection if the inmate was sentenced to death for the offense for which the inmate claims to be an eligible inmate and is requesting DNA testing.
(b)(2) If the inmate was not sentenced to death for the offense for which the inmate claims to be an eligible inmate and is requesting DNA testing, the rejection is a final appealable order, and the inmate may appeal it to the court of appeals of the district in which is located that court of common pleas.
(F) Notwithstanding any provision of law regarding fees and
costs, no filing fee shall be required of, and no court costs
shall be assessed against, an eligible offender who is indigent
and who submits an application under this section. (G) If a court rejects an eligible inmate's application for DNA testing under division (D) of this section, unless the rejection is overturned on appeal, no court shall require the state to administer a DNA test under sections 2953.71 to 2953.81 of the Revised Code on the eligible inmate.
Sec. 2953.82. (A) An inmate who pleaded guilty or no contest to a felony offense that was committed prior to the effective date of this section October 29, 2003 may request DNA testing under this section regarding that offense if all of the following apply:
(1) The inmate was sentenced to a prison term or sentence of death for that felony and, on the effective date of this section October 29, 2003, is in prison serving that prison term or under that sentence of death.
(2) On the date on which the inmate files the application requesting the testing with the court as described in division (B) of this section, the inmate has at least one year remaining on the prison term described in division (A)(1) of this section, or the inmate is in prison under a sentence of death as described in that division.
(B) An inmate who pleaded guilty or no contest to a felony offense that was committed prior to the effective date of this section October 29, 2003, who satisfies the criteria set forth in division (A) of this section, and who wishes to request DNA testing under this section shall submit, in accordance with this division, an application for the testing to the court of common pleas and the prosecuting attorney. The inmate shall specify on the application the offense or offenses for which the inmate is requesting the DNA testing under this section. Along with the application, the inmate shall submit an acknowledgment that is signed by the inmate. The application and acknowledgment required under this division shall be the same application and acknowledgment as are used by eligible inmates who request DNA testing under sections 2953.71 to 2953.81 of the Revised Code. The inmate shall file the application with the court of common pleas not later than one year two years after the effective date of this section October 29, 2003. Upon filing the application, the inmate shall serve a copy on the prosecuting attorney.
(C) Within forty-five days after the filing of an application for DNA testing under division (B) of this section, the prosecuting attorney shall file a statement with the court that indicates whether the prosecuting attorney agrees or disagrees that the inmate should be permitted to obtain DNA testing under this section. If the prosecuting attorney agrees that the inmate should be permitted to obtain DNA testing under this section, all of the following apply:
(1) The application and the written statement shall be considered for all purposes as if they were an application for DNA testing filed under section 2953.73 of the Revised Code that the court accepted, and the court, the prosecuting attorney, the attorney general, the inmate, law enforcement personnel, and all other involved persons shall proceed regarding DNA testing for the inmate pursuant to sections 2953.77 to 2953.81 of the Revised Code, in the same manner as if the inmate was an eligible inmate for whom an application for DNA testing had been accepted.
(2) Upon completion of the DNA testing, section 2953.81 of the Revised Code applies.
(D) If the prosecuting attorney disagrees that the inmate should be permitted to obtain DNA testing under this section, the prosecuting attorney's disagreement is final and is not appealable by any person to any court, and no court shall have authority, without agreement of the prosecuting attorney, to order DNA testing regarding that inmate and the offense or offenses for which the inmate requested DNA testing in the application. (E) If the prosecuting attorney fails to file a statement of agreement or disagreement within the time provided in division (C) of this section, the court may order the prosecuting attorney to file a statement of that nature within fifteen days of the date of the order.
Sec. 5120.021. (A) The provisions of Chapter 5120. of the Revised Code, as it they existed prior to
July 1, 1996, applies and that address the duration or potential duration of incarceration or parole or other forms of supervised release, apply to a person all persons upon whom a court
imposed a term of imprisonment prior to July 1, 1996, and
a person all persons upon whom a court, on or after July 1, 1996, and
in accordance with law existing prior to July 1, 1996,
imposed a term of imprisonment for an offense that was committed prior to
July 1, 1996. (B) The provisions of Chapter 5120. of the Revised Code, as it exists they exist on and or after the
effective
date of this section July 1, 1996, applies and that address the duration or potential duration of incarceration or supervised release, apply to a
person all persons
upon whom a court imposed a stated
prison term for an offense committed on or after the effective date of this
section July 1, 1996. (C) Nothing in this section limits or affects the applicability of any provision in Chapter 5120. of the Revised Code, as amended or enacted on or after July 1, 1996, that pertains to an issue other than the duration or potential duration of incarceration or supervised release, to persons in custody or under the supervision of the department of rehabilitation and correction.
Section 2. That existing sections 109.573, 313.08, 2152.74, 2743.191, 2901.07, 2953.73, 2953.82, and 5120.021 of the Revised Code are hereby repealed.
Section 3. The General Assembly hereby declares that its purpose in amending section 5120.021 of the Revised Code in Sections 1 and 2 of this act is to clarify the applicability of the provisions in Chapter 5120. of the Revised Code that address the duration or potential duration of incarceration and supervision of offenders by the Department of Rehabilitation and Correction, and to clarify the applicability of any other provision in Chapter 5120. of the Revised Code amended or enacted on or after July 1, 1996, to persons in custody or under supervision of the Department. The General Assembly believes that the amendments to section 5120.021 of the Revised Code made in Sections 1 and 2 of this act are not substantive in nature, that these amendments do not affect any substantive right of any offender, and that the version of section 5120.021 of the Revised Code resulting from this act is substantively the same as the version of that section in existence immediately prior to the effective date of this act. Section 4. Section 2743.191 of the Revised Code is presented in
this act as a composite of the section as amended by both Am. Sub. H.B. 95 and Am. Sub. S.B. 5 of
the 125th General Assembly. The General Assembly, applying the
principle stated in division (B) of section 1.52 of the Revised
Code that amendments are to be harmonized if reasonably capable of
simultaneous operation, finds that the composite is the resulting
version of the section in effect prior to the effective date of
the section as presented in this act.
|