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Sub. S. B. No. 268 As Passed by the SenateAs Passed by the Senate
129th General Assembly | Regular Session | 2011-2012 |
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Cosponsors:
Senators Seitz, Patton, LaRose, Jones, Wagoner, Bacon, Coley, Hite, Hughes, Lehner, Niehaus, Widener
A BILL
To amend sections 2901.07, 2953.51, 2953.52, and
2953.53 of the Revised Code to provide for the
taking of a DNA sample from a person who is
charged with a felony but not arrested for the
offense or whose DNA sample related to a felony
offense was not taken when required and to provide
for a court order, upon the person's request,
requiring the Bureau of Criminal Identification
and Investigation to seal DNA specimens, records,
and profiles taken from a person when the person
is found not guilty, the charges are dismissed
with prejudice, or the charges are dismissed
without prejudice and the statute of limitations
has expired.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2901.07, 2953.51, 2953.52, and
2953.53 of the Revised Code be amended to read as follows:
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.
(4) "Head of the arresting law enforcement agency" means
whichever of the following is applicable regarding the arrest in
question:
(a) If the arrest was made by a sheriff or a deputy sheriff,
the sheriff who made the arrest or who employs the deputy sheriff
who made the arrest;
(b) If the arrest was made by a law enforcement officer of a
law enforcement agency of a municipal corporation, the chief of
police, marshal, or other chief law enforcement officer of the
agency that employs the officer who made the arrest;
(c) If the arrest was made by a constable or a law
enforcement officer of a township police department or police
district police force, the constable who made the arrest or the
chief law enforcement officer of the department or agency that
employs the officer who made the arrest;
(d) If the arrest was made by the superintendent or a trooper
of the state highway patrol, the superintendent of the state
highway patrol;
(e) If the arrest was made by a law enforcement officer not
identified in division (A)(4)(a), (b), (c), or (d) of this
section, the chief law enforcement officer of the law enforcement
agency that employs the officer who made the arrest.
(5) "Detention facility" has the same meaning as in section
2921.01 of the Revised Code.
(B)(1)(a) On and after July 1, 2011, a person who is eighteen
years of age or older and who is arrested on or after July 1,
2011, for a felony offense shall submit to a DNA specimen
collection procedure administered by the head of the arresting law
enforcement agency. The head of the arresting law enforcement
agency shall cause the DNA specimen to be collected from the
person during the intake process at the jail, community-based
correctional facility, detention facility, or law enforcement
agency office or station to which the arrested person is taken
after the arrest. The head of the arresting law enforcement agency
shall cause the DNA specimen to be collected in accordance with
division (C) of this section.
(b) If a person who is charged with a felony on or after July
1, 2011, has not been arrested and first appears before a court or
magistrate in response to a summons, or if the head of the
arresting law enforcement agency has not administered a DNA
specimen collection procedure upon the person arrested for a
felony in accordance with division (B)(1)(a) of this section by
the time of the arraignment or first appearance of the person, the
court shall order the person to appear before the sheriff or chief
of police of the county or municipal corporation within
twenty-four hours to submit to a DNA specimen collection procedure
administered by the sheriff or chief of police. The sheriff or
chief of police shall cause the DNA specimen to be collected from
the person in accordance with division (C) of this section.
(c) Every court with jurisdiction over a case involving a
person with respect to whom division (B)(1)(a) or (b) of this
section requires the head of a law enforcement agency or a sheriff
or chief of police to administer a DNA specimen collection
procedure upon the person shall inquire at the time of the
person's sentencing whether or not the person has submitted to a
DNA specimen collection procedure pursuant to division (B)(1)(a)
or (b) of this section for the original arrest or court appearance
upon which the sentence is based. If the person has not submitted
to a DNA specimen collection procedure for the original arrest or
court appearance upon which the sentence is based, the court shall
order the person to appear before the sheriff or chief of police
of the county or municipal corporation within twenty-four hours to
submit to a DNA specimen collection procedure administered by the
sheriff or chief of police. The sheriff or chief of police shall
cause the DNA specimen to be collected in accordance with division
(C) of this section.
(d) If a person is in the custody of a law enforcement agency
or a detention facility, if the chief law enforcement officer or
chief administrative officer of the detention facility discovers
that a warrant has been issued or a bill of information has been
filed alleging the person to have committed an offense other than
the offense for which the person is in custody, and if the other
alleged offense is one for which a DNA specimen is to be collected
from the person pursuant to division (B)(1)(a) or (b) of this
section, the chief law enforcement officer or chief administrative
officer shall cause a DNA specimen to be collected from the person
in accordance with division (C) of this section.
(2) Regardless of when the conviction occurred or the guilty
plea was entered, a person who has been convicted of, is convicted
of, has pleaded guilty to, or pleads guilty to a felony offense,
who is sentenced to a prison term or to a community residential
sanction in a jail or community-based correctional facility for
that offense pursuant to section 2929.16 of the Revised Code, and
who does not provide a DNA specimen pursuant to division (B)(1) of
this section, and a person who has been convicted of, is convicted
of, has pleaded guilty to, or pleads guilty to a misdemeanor
offense listed in division (D) of this section, who is sentenced
to a term of imprisonment for that offense, and who does not
provide a DNA specimen pursuant to division (B)(1) of this
section, 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. The DNA specimen shall be collected in accordance with
division (C) of this section.
(3) Regardless of when the conviction occurred or the guilty
plea was entered, if a person has been convicted of, is convicted
of, has pleaded guilty to, or pleads guilty to 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) or (2) 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. The DNA specimen shall be collected in
accordance with division (C) of this section.
(4)(a) Regardless of when the conviction occurred or the
guilty plea was entered, if a person has been convicted of, is
convicted of, has pleaded guilty to, or pleads guilty to a felony
offense or a misdemeanor offense listed in division (D) of this
section and the person is on probation, released on parole, under
transitional control, on community control, on post-release
control, or under any other type of supervised release under the
supervision of a probation department or the adult parole
authority for that offense, and did not provide a DNA specimen
pursuant to division (B)(1), (2), or (3) of this section, 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. If
the person refuses to submit to a DNA specimen collection
procedure as provided in this division, the person may be subject
to the provisions of section 2967.15 of the Revised Code.
(b) If a person to whom division (B)(4)(a) of this section
applies 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 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), (2), (3), or (4)(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. The
DNA specimen shall be collected from the person in accordance with
division (C) of this section.
(5) Regardless of when the conviction occurred or the guilty
plea was entered, if a person has been convicted of, is convicted
of, has pleaded guilty to, 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), (4)(a), or (4)(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 head of the
arresting law enforcement agency, the sheriff or chief of police,
the chief law enforcement officer, or the chief administrative
officer of the detention facility regarding a DNA specimen taken
pursuant to division (B)(1) of this section, 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 regarding a DNA specimen taken pursuant to
division (B)(2), (3), or (4)(b) of this section, the chief
administrative officer of the probation department or the adult
parole authority regarding a DNA specimen taken pursuant to
division (B)(4)(a) of this section, or the chief administrative
officer of the county probation office, the director of
rehabilitation and correction, or the chief administrative officer
of the jail or other detention facility in which the person is
incarcerated regarding a DNA specimen taken pursuant to division
(B)(5) of this section, whichever is applicable, 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 DNA specimen collection duty set forth in division
(B)(1) of this section applies to any person who is eighteen years
of age or older and who is arrested on or after July 1, 2011, for
is arrested for or charged with any felony offense or is in any
other circumstance described in that division. The DNA specimen
collection duties set forth in divisions (B)(2), (3), (4)(a),
(4)(b), and (5) of this section apply to any person who has been
convicted of, is convicted of, has pleaded guilty to, or pleads
guilty to any felony offense or 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 2907.04 of the Revised Code;
(2) 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;
(3) A misdemeanor violation of section 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;
(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 is a tier III sex offender/child-victim offender, as
defined in section 2950.01 of the Revised Code.
(E) The director of rehabilitation and correction may
prescribe rules in accordance with Chapter 119. of the Revised
Code to collect a DNA specimen, as provided in this section, from
an offender whose supervision is transferred from another state to
this state in accordance with the interstate compact for adult
offender supervision described in section 5149.21 of the Revised
Code.
Sec. 2953.51. As used in sections 2953.51 to 2953.56 of the
Revised Code:
(A) "No bill" means a report by the foreperson or deputy
foreperson of a grand jury that an indictment is not found by the
grand jury against a person who has been held to answer before the
grand jury for the commission of an offense.
(B) "Prosecutor" has the same meaning as in section 2953.31
of the Revised Code.
(C) "Court" means the court in which a case is pending at the
time a finding of not guilty in the case or a dismissal of the
complaint, indictment, or information in the case is entered on
the minutes or journal of the court, or the court to which the
foreperson or deputy foreperson of a grand jury reports, pursuant
to section 2939.23 of the Revised Code, that the grand jury has
returned a no bill.
(D) "Official records" means all records that are possessed
by any public office or agency that relate to a criminal case,
including, but not limited to: the notation to the case in the
criminal docket; all subpoenas issued in the case; all papers and
documents filed by the defendant or the prosecutor in the case;
all records of all testimony and evidence presented in all
proceedings in the case; all court files, papers, documents,
folders, entries, affidavits, or writs that pertain to the case;
all computer, microfilm, microfiche, or microdot records, indices,
or references to the case; all index references to the case; all
fingerprints and photographs; all DNA specimens, DNA records, and
DNA profiles; all records and investigative reports pertaining to
the case that are possessed by any law enforcement officer or
agency, except that any records or reports that are the specific
investigatory work product of a law enforcement officer or agency
are not and shall not be considered to be official records when
they are in the possession of that officer or agency; and all
investigative records and reports other than those possessed by a
law enforcement officer or agency pertaining to the case.
"Official records" does not include records or reports maintained
pursuant to section 2151.421 of the Revised Code by a public
children services agency or the department of job and family
services.
(E) "DNA database," "DNA record," "DNA specimen," and "law
enforcement agency" have the same meanings as in section 109.573
of the Revised Code.
(F) "Fingerprints filed for record" has the same meaning as
in section 2953.31 of the Revised Code.
Sec. 2953.52. (A)(1) Any person, who is found not guilty of
an offense by a jury or a court or who is the defendant named in a
dismissed complaint, indictment, or information, may apply to the
court for an order to seal
his
the person's official records in
the case. Except as provided in section 2953.61 of the Revised
Code, the application may be filed at any time after the finding
of not guilty or the dismissal of the complaint, indictment, or
information is entered upon the minutes of the court or the
journal, whichever entry occurs first.
(2) Any person, against whom a no bill is entered by a grand
jury, may apply to the court for an order to seal his official
records in the case. Except as provided in section 2953.61 of the
Revised Code, the application may be filed at any time after the
expiration of two years after the date on which the
foreman
foreperson or deputy
foreman
foreperson of the grand jury reports
to the court that the grand jury has reported a no bill.
(B)(1) Upon the filing of an application pursuant to division
(A) of this section, the court shall set a date for a hearing and
shall notify the prosecutor in the case of the hearing on the
application. The prosecutor may object to the granting of the
application by filing an objection with the court prior to the
date set for the hearing. The prosecutor shall specify in the
objection the reasons
he
the prosecutor believes justify a denial
of the application.
(2) The court shall do each of the following, except as
provided in division (B)(3) of this section:
(a)(i) Determine whether the person was found not guilty in
the case, or the complaint, indictment, or information in the case
was dismissed, or a no bill was returned in the case and a period
of two years or a longer period as required by section 2953.61 of
the Revised Code has expired from the date of the report to the
court of that no bill by the
foreman
foreperson or deputy
foreman
foreperson of the grand jury;
(ii) If the complaint, indictment, or information in the case
was dismissed, determine whether it was dismissed with prejudice
or without prejudice and, if it was dismissed without prejudice,
determine whether the relevant statute of limitations has expired;
(b) Determine whether criminal proceedings are pending
against the person;
(c) If the prosecutor has filed an objection in accordance
with division (B)(1) of this section, consider the reasons against
granting the application specified by the prosecutor in the
objection;
(d) Weigh the interests of the person in having the official
records pertaining to the case sealed against the legitimate
needs, if any, of the government to maintain those records.
(3) If the court determines after complying with division
(B)(2)(a) of this section that the person was found not guilty in
the case, that the complaint, indictment, or information in the
case was dismissed with prejudice, or that the complaint,
indictment, or information in the case was dismissed without
prejudice and that the relevant statute of limitations has
expired, the court shall issue an order to the superintendent of
the bureau of criminal identification and investigation directing
that the superintendent seal or cause to be sealed the official
records in the case consisting of DNA specimens that are in the
possession of the bureau and all DNA records and DNA profiles. The
determinations and considerations described in divisions
(B)(2)(b), (c), and (d) of this section do not apply with respect
to a determination of the court described in this division.
(4) The determinations described in this division are
separate from the determination described in division (B)(3) of
this section. If the court determines, after complying with
division (B)(2) of this section, that the person was found not
guilty in the case, that the complaint, indictment, or information
in the case was dismissed, or that a no bill was returned in the
case and that the appropriate period of time has expired from the
date of the report to the court of the no bill by the
foreman
foreperson or deputy
foreman
foreperson of the grand jury; that no
criminal proceedings are pending against the person; and the
interests of the person in having the records pertaining to the
case sealed are not outweighed by any legitimate governmental
needs to maintain such records, or if division (E)(2)(b) of
section 4301.69 of the Revised Code applies, in addition to the
order required under division (B)(3) of this section, the court
shall issue an order directing that all official records
pertaining to the case be sealed and that, except as provided in
section 2953.53 of the Revised Code, the proceedings in the case
be deemed not to have occurred.
(5) Any DNA specimens, DNA records, and DNA profiles ordered
to be sealed under this section shall not be sealed if the person
with respect to whom the order applies is otherwise eligible to
have DNA records or a DNA profile in the national DNA index
system.
Sec. 2953.53. (A) The court shall send notice of any order
to seal official records issued pursuant to division (B)(3) of
section 2953.52 of the Revised Code to the bureau of criminal
identification and investigation and shall send notice of any
order issued pursuant to division (B)(4) of that section to any
public office or agency that the court knows or has reason to
believe may have any record of the case, whether or not it is an
official record, that is the subject of the order. The notice
shall be sent by certified mail, return receipt requested.
(B) A person whose official records have been sealed pursuant
to an order issued pursuant to section 2953.52 of the Revised Code
may present a copy of that order and a written request to comply
with it, to a public office or agency that has a record of the
case that is the subject of the order.
(C) An order to seal official records issued pursuant to
section 2953.52 of the Revised Code applies to every public office
or agency that has a record of the case that is the subject of the
order, regardless of whether it receives notice of the hearing on
the application for the order to seal the official records or
receives a copy of the order to seal the official records pursuant
to division (A) or (B) of this section.
(D) Upon receiving a copy of an order to seal official
records pursuant to division (A) or (B) of this section or upon
otherwise becoming aware of an applicable order to seal official
records issued pursuant to section 2953.52 of the Revised Code, a
public office or agency shall comply with the order and, if
applicable, with the provisions of section 2953.54 of the Revised
Code, except that it may maintain a record of the case that is the
subject of the order if the record is maintained for the purpose
of compiling statistical data only and does not contain any
reference to the person who is the subject of the case and the
order.
A public office or agency also may maintain an index of
sealed official records, in a form similar to that for sealed
records of conviction as set forth in division (F) of section
2953.32 of the Revised Code, access to which may not be afforded
to any person other than the person who has custody of the sealed
official records. The sealed official records to which such an
index pertains shall not be available to any person, except that
the official records of a case that have been sealed may be made
available to the following persons for the following purposes:
(1) To the person who is the subject of the records upon
written application, and to any other person named in the
application, for any purpose;
(2) To a law enforcement officer who was involved in the
case, for use in the officer's defense of a civil action arising
out of the officer's involvement in that case;
(3) To a prosecuting attorney or the prosecuting attorney's
assistants to determine a defendant's eligibility to enter a
pre-trial diversion program established pursuant to section
2935.36 of the Revised Code;
(4) To a prosecuting attorney or the prosecuting attorney's
assistants to determine a defendant's eligibility to enter a
pre-trial diversion program under division (E)(2)(b) of section
4301.69 of the Revised Code.
Section 2. That existing sections 2901.07, 2953.51, 2953.52,
and 2953.53 of the Revised Code are hereby repealed.
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