130th Ohio General Assembly
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Sub. S. B. No. 316  As Passed by the House
As Passed by the House

130th General Assembly
Regular Session
2013-2014
Sub. S. B. No. 316


Senator Cafaro 

Cosponsors: Senators Turner, Brown, Schiavoni, LaRose, Obhof, Bacon, Balderson, Beagle, Burke, Coley, Eklund, Faber, Gardner, Gentile, Hite, Hughes, Jones, Kearney, Lehner, Manning, Oelslager, Patton, Peterson, Sawyer, Schaffer, Seitz, Tavares, Uecker, Widener 

Representatives Stinziano, Letson, Anielski, Antonio, Barborak, Blessing, Boyce, Brenner, Brown, Burkley, Butler, Carney, Celebrezze, Cera, Derickson, Dovilla, Driehaus, Duffey, Fedor, Foley, Gerberry, Gonzales, Green, Grossman, Hackett, Hagan, C., Hagan, R., Hall, Heard, Henne, Hottinger, Huffman, Johnson, Kunze, Landis, Mallory, McClain, McGregor, Milkovich, O'Brien, Patmon, Patterson, Pelanda, Perales, Phillips, Pillich, Rogers, Romanchuk, Ruhl, Schuring, Sears, Sheehy, Slaby, Smith, Stautberg, Strahorn, Terhar, Thompson, Wachtmann, Young Speaker Batchelder 



A BILL
To amend sections 109.573 and 2933.82 of the Revised Code to require a law enforcement agency to review its records pertaining to specified homicide and sex offenses and to forward the contents of a related sexual assault examination kit in its possession to the Bureau of Criminal Identification and Investigation or another crime laboratory for DNA analysis based on the outcome of the review, to require a law enforcement agency that initiates an investigation and determines that one or more persons may have committed or participated in a specified homicide or sex offense or another offense committed during the course of a specified homicide or sex offense to forward the contents of a sexual assault examination kit it possesses to the Bureau or another crime laboratory within thirty days for DNA analysis, and to require consideration of time remaining under a statute of limitations as a factor in prioritizing the order in which the DNA specimens forwarded by law enforcement agencies undergo DNA analysis.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 109.573 and 2933.82 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 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 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 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, and 2933.82 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, and 2933.82 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 or that are forwarded by law enforcement agencies pursuant to divisions (B)(2)(a) and (b) of section 2933.82 of the Revised Code priority over DNA analyses of DNA specimens that relate to applications made pursuant to section 2953.73 of the Revised Code. The state DNA laboratory and any laboratory under contract with the bureau to perform DNA analyses shall consider the period of time remaining under section 2901.13 of the Revised Code for commencing the prosecution of a criminal offense related to the DNA specimens as well as other relevant factors in prioritizing DNA analysis of the DNA specimens forwarded by law enforcement agencies pursuant to division (B)(2)(a) or (b) of section 2933.82 of the Revised Code.
(J) The attorney general may develop procedures for entering into the national DNA index system the DNA records submitted pursuant to division (B)(1) of section 2901.07 of the Revised Code.
Sec. 2933.82.  (A) As used in this section:
(1)(a) "Biological evidence" means any of the following:
(i) The contents of a sexual assault examination kit;
(ii) Any item that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or any other identifiable biological material that was collected as part of a criminal investigation or delinquent child investigation and that reasonably may be used to incriminate or exculpate any person for an offense or delinquent act.
(b) The definition of "biological evidence" set forth in division (A)(1)(a) of this section applies whether the material in question is cataloged separately, such as on a slide or swab or in a test tube, or is present on other evidence, including, but not limited to, clothing, ligatures, bedding or other household material, drinking cups or containers, or cigarettes.
(2) "Biological material" has the same meaning as in section 2953.71 of the Revised Code.
(3) "DNA," has "DNA analysis," "DNA database," "DNA record," and "DNA specimen" have the same meaning meanings as in section 109.573 of the Revised Code.
(4) "Profile" means a unique identifier of an individual, derived from DNA.
(5) "Prosecutor" has the same meaning as in section 2935.01 of the Revised Code.
(6)(5) "Governmental evidence-retention entity" means all of the following:
(a) Any law enforcement agency, prosecutor's office, court, public hospital, crime laboratory, or other governmental or public entity or individual within this state that is charged with the collection, storage, or retrieval of biological evidence;
(b) Any official or employee of any entity or individual described in division (A)(6)(5)(a) of this section.
(B)(1) Each governmental evidence-retention entity that secures any biological evidence in relation to an investigation or prosecution of a criminal offense or delinquent act that is a violation of section 2903.01, 2903.02, or 2903.03, a violation of section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or 2907.03 or division (A)(4) or (B) of section 2907.05 of the Revised Code, or an attempt to commit a violation of section 2907.02 of the Revised Code shall secure the biological evidence for whichever of the following periods of time is applicable:
(a) For a violation of section 2903.01 or 2903.02 of the Revised Code, for the period of time that the offense or act remains unsolved;
(b) For a violation of section 2903.03, a violation of section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or 2907.03 or of division (A)(4) or (B) of section 2907.05 of the Revised Code, or an attempt to commit a violation of section 2907.02 of the Revised Code, for a period of thirty years if the offense or act remains unsolved;
(c) If any person is convicted of or pleads guilty to the offense, or is adjudicated a delinquent child for committing the delinquent act, for the earlier of the following: (i) the expiration of the latest of the following periods of time that apply to the person: the period of time that the person is incarcerated, is in a department of youth services institution or other juvenile facility, is under a community control sanction for that offense, is under any order of disposition for that act, is on probation or parole for that offense, is under judicial release or supervised release for that act, is under post-release control for that offense, is involved in civil litigation in connection with that offense or act, or is subject to registration and other duties imposed for that offense or act under sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code or (ii) thirty years. If after the period of thirty years the person remains incarcerated, then the governmental evidence-retention entity shall secure the biological evidence until the person is released from incarceration or dies.
(2)(a) A law enforcement agency shall review all of its records and reports pertaining to its investigation of any offense specified in division (B)(1) of this section as soon as possible after the effective date of this amendment. If the law enforcement agency's review determines that one or more persons may have committed or participated in an offense specified in division (B)(1) of this section or another offense committed during the course of an offense specified in division (B)(1) of this section and the agency is in possession of a sexual assault examination kit secured during the course of the agency's investigation, as soon as possible, but not later than one year after the effective date of this amendment, the agency shall forward the contents of the kit to the bureau of criminal identification and investigation or another crime laboratory for a DNA analysis of the contents of the kit if a DNA analysis has not previously been performed on the contents of the kit. The law enforcement agency shall consider the period of time remaining under section 2901.13 of the Revised Code for commencing the prosecution of a criminal offense related to the DNA specimens from the kit as well as other relevant factors in prioritizing the forwarding of the contents of sexual assault examination kits.
(b) If an investigation is initiated on or after the effective date of this amendment, and if a law enforcement agency investigating an offense specified in division (B)(1) of this section determines that one or more persons may have committed or participated in an offense specified in division (B)(1) of this section or another offense committed during the course of an offense specified in division (B)(1) of this section, the law enforcement agency shall forward the contents of a sexual assault examination kit in the agency's possession to the bureau or another crime laboratory within thirty days for a DNA analysis of the contents of the kit.
(c) A law enforcement agency shall be considered in the possession of a sexual assault examination kit that is not in the law enforcement agency's possession for purposes of divisions (B)(2)(a) and (b) of this section if the sexual assault examination kit contains biological evidence related to the law enforcement agency's investigation of an offense specified in division (B)(1) of this section and is in the possession of another government evidence-retention entity. The law enforcement agency shall be responsible for retrieving the sexual assault examination kit from the government evidence-retention entity and forwarding the contents of the kit to the bureau or another crime laboratory as required under divisions (B)(2)(a) and (b) of this section.
(d)(i) The bureau or a laboratory under contract with the bureau pursuant to division (B)(5) of section 109.573 of the Revised Code shall perform a DNA analysis of the contents of any sexual assault examination kit forwarded to the bureau pursuant to division (B)(2)(a) or (b) of this section as soon as possible after the bureau receives the contents of the kit. The bureau shall enter the resulting DNA record into a DNA database. If the DNA analysis is performed by a laboratory under contract with the bureau, the laboratory shall forward the biological evidence to the bureau immediately after the laboratory performs the DNA analysis. A crime laboratory shall perform a DNA analysis of the contents of any sexual assault examination kit forwarded to the crime laboratory pursuant to division (B)(2)(a) or (b) of this section as soon as possible after the crime laboratory receives the contents of the kit and shall enter the resulting DNA record into a DNA database subject to the applicable DNA index system standards.
(ii) Upon the completion of the DNA analysis by the bureau or a crime laboratory under contract with the bureau under this division, the bureau shall return the contents of the sexual assault examination kit to the law enforcement agency. The law enforcement agency shall secure the contents of the sexual assault examination kit in accordance with division (B)(1) of this section, as applicable.
(e) The failure of any law enforcement agency to comply with any time limit specified in this section shall not create, and shall not be construed as creating, any basis or right to appeal, claim for or right to postconviction relief, or claim for or right to a new trial or any other claim or right to relief by any person.
(3) This section applies to evidence likely to contain biological material that was in the possession of any governmental evidence-retention entity during the investigation and prosecution of a criminal case or delinquent child case involving a violation of section 2903.01, 2903.02, or 2903.03, a violation of section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or 2907.03 or of division (A)(4) or (B) of section 2907.05 of the Revised Code, or an attempt to commit a violation of section 2907.02 of the Revised Code.
(3)(4) A governmental evidence-retention entity that possesses biological evidence shall retain the biological evidence in the amount and manner sufficient to develop a DNA profile record from the biological material contained in or included on the evidence.
(4)(5) Upon written request by the defendant in a criminal case or the alleged delinquent child in a delinquent child case involving a violation of section 2903.01, 2903.02, or 2903.03, a violation of section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or 2907.03 or of division (A)(4) or (B) of section 2907.05 of the Revised Code, or an attempt to commit a violation of section 2907.02 of the Revised Code, a governmental evidence-retention entity that possesses biological evidence shall prepare an inventory of the biological evidence that has been preserved in connection with the defendant's criminal case or the alleged delinquent child's delinquent child case.
(5)(6) Except as otherwise provided in division (B)(7)(8) of this section, a governmental evidence-retention entity that possesses biological evidence that includes biological material may destroy the evidence before the expiration of the applicable period of time specified in division (B)(1) of this section if all of the following apply:
(a) No other provision of federal or state law requires the state to preserve the evidence.
(b) The governmental evidence-retention entity, by certified mail, return receipt requested, provides notice of intent to destroy the evidence to all of the following:
(i) All persons who remain in custody, incarcerated, in a department of youth services institution or other juvenile facility, under a community control sanction, under any order of disposition, on probation or parole, under judicial release or supervised release, under post-release control, involved in civil litigation, or subject to registration and other duties imposed for that offense or act under sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code as a result of a criminal conviction, delinquency adjudication, or commitment related to the evidence in question;
(ii) The attorney of record for each person who is in custody in any circumstance described in division (B)(5)(6)(b)(i) of this section if the attorney of record can be located;
(iii) The state public defender;
(iv) The office of the prosecutor of record in the case that resulted in the custody of the person in custody in any circumstance described in division (B)(5)(6)(b)(i) of this section;
(v) The attorney general.
(c) No person who is notified under division (B)(5)(6)(b) of this section does either of the following within one year after the date on which the person receives the notice:
(i) Files a motion for testing of evidence under sections 2953.71 to 2953.81 or section 2953.82 of the Revised Code;
(ii) Submits a written request for retention of evidence to the governmental evidence-retention entity that provided notice of its intent to destroy evidence under division (B)(5)(6)(b) of this section.
(6)(7) Except as otherwise provided in division (B)(7)(8) of this section, if, after providing notice under division (B)(5)(6)(b) of this section of its intent to destroy evidence, a governmental evidence-retention entity receives a written request for retention of the evidence from any person to whom the notice is provided, the governmental evidence-retention entity shall retain the evidence while the person referred to in division (B)(5)(6)(b)(i) of this section remains in custody, incarcerated, in a department of youth services institution or other juvenile facility, under a community control sanction, under any order of disposition, on probation or parole, under judicial release or supervised release, under post-release control, involved in civil litigation, or subject to registration and other duties imposed for that offense or act under sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code as a result of a criminal conviction, delinquency adjudication, or commitment related to the evidence in question.
(7)(8) A governmental evidence-retention entity that possesses biological evidence that includes biological material may destroy the evidence five years after a person pleads guilty or no contest to a violation of section 2903.01, 2903.02, or 2903.03, a violation of section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02, 2907.03, division (A)(4) or (B) of section 2907.05, or an attempt to commit a violation of section 2907.02 of the Revised Code and all appeals have been exhausted unless, upon a motion to the court by the person who pleaded guilty or no contest or the person's attorney and notice to those persons described in division (B)(5)(6)(b) of this section requesting that the evidence not be destroyed, the court finds good cause as to why that evidence must be retained.
(8)(9) A governmental evidence-retention entity shall not be required to preserve physical evidence pursuant to this section that is of such a size, bulk, or physical character as to render retention impracticable. When retention of physical evidence that otherwise would be required to be retained pursuant to this section is impracticable as described in this division, the governmental evidence-retention entity that otherwise would be required to retain the physical evidence shall remove and preserve portions of the material evidence likely to contain biological evidence related to the offense, in a quantity sufficient to permit future DNA testing before returning or disposing of that physical evidence.
(C)(1) The preservation of biological evidence task force established within the bureau of criminal identification and investigation under section 109.561 of the Revised Code shall establish a system regarding the proper preservation of biological evidence in this state. In establishing the system, the task force shall do all of the following:
(a) Devise standards regarding the proper collection, retention, and cataloguing cataloging of biological evidence for ongoing investigations and prosecutions;
(b) Recommend practices, protocols, models, and resources for the cataloging and accessibility of preserved biological evidence already in the possession of governmental evidence-retention entities.
(2) In consultation with the preservation of biological evidence task force described in division (C)(1) of this section, the office of the attorney general shall administer and conduct training programs for law enforcement officers and other relevant employees who are charged with preserving and cataloging biological evidence regarding the methods and procedures referenced in this section.
Section 2. That existing sections 109.573 and 2933.82 of the Revised Code are hereby repealed.
Section 3.  In amending sections 109.573 and 2933.82 of the Revised Code in this act, the General Assembly finds and declares all of the following:
(A) Deoxyribonucleic acid (DNA) analysis is a powerful law enforcement tool for identifying and prosecuting sex offenders.
(B) Victims of sexually oriented offenses have a strong interest in the investigation and prosecution of their cases.
(C) The privacy of victims of sexually oriented offenses should be protected to the full extent permissible under the law.
(D) Law enforcement agencies have an obligation to victims of sexually oriented offenses in the proper handling, retention, and timely DNA analysis of DNA specimens and to be responsive to victims of sexually oriented offenses concerning the development of DNA records and the investigation of their cases.
(E) The Bureau of Criminal Identification and Investigation's entry of DNA records resulting from DNA analyses of DNA specimens obtained from the contents of sexual assault examination kits into a DNA database makes it possible for many sex offenders to be identified, provided that the contents of sexual assault examination kits are analyzed in a timely manner.
(F) Timely DNA analysis of DNA specimens obtained from the contents of sexual assault examination kits facilitates the prosecution of sexually oriented offenses within the statute of limitation for the offense and furthers public safety in Ohio.
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