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Sub. S. B. No. 316 As Reported by the House Judiciary CommitteeAs Reported by the House Judiciary Committee
130th General Assembly | Regular Session | 2013-2014 |
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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
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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