AN ACT
RELATING TO LAW ENFORCEMENT; PROVIDING FOR THE DNA
IDENTIFICATION OF MISSING PERSONS, UNIDENTIFIED PERSONS AND UNIDENTIFIED HUMAN
REMAINS; AMENDING AND ENACTING SECTIONS OF THE DNA IDENTIFICATION ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of the DNA Identification Act
is enacted to read:
"EXPUNGEMENT OF SAMPLES
AND DNA RECORDS.--
A. A person may request expungement of his
sample and DNA records from the missing persons DNA identification system.
B. The administrative center shall expunge a
person's sample and DNA records from the missing persons DNA identification
system when the person provides the administrative center with the following
materials:
(1) a written request for expungement of his
sample and DNA records; and
(2) if applicable, a certified copy of a court
order that overturns the original search warrant or court order that led to the
inclusion of his sample and DNA records in the missing persons DNA
identification system.
C. When a person's sample and DNA records are
expunged from the missing persons DNA identification system, the head of the
administrative center shall ensure that the person's sample and DNA records are
expunged from CODIS."
Section 2. A new section of the DNA Identification Act
is enacted to read:
"REIMBURSEMENT OF COSTS.--
A. When the DNA testing of samples listed in
Section 29-16-6 NMSA 1978 is required, the administrative center shall be
reimbursed for the costs of the sample collection and DNA testing:
(1) of unidentified persons by the investigating
law enforcement agency;
(2) of unidentified human remains by the state
medical investigator or by the investigating law enforcement agency; and
(3) for relatives of, or known reference samples
from, a missing person by the relatives of the missing person or by the
investigating law enforcement agency.
B. Reimbursements shall be deposited in the
fund." Section 3. A new section of the DNA Identification Act
is enacted to read:
"DNA SEARCHES.--
A. Searches of samples collected pursuant to the
DNA Identification Act, for purposes of the missing persons DNA identification
system, shall be limited to searches against DNA indexes consisting of:
(1) unidentified persons;
(2) unidentified human remains;
(3) relatives of, or known reference samples
from, missing persons; and
(4) covered offenders as defined by the DNA
Identification Act and maintained by the DNA identification system.
B. Searches of samples collected from
unidentified persons or relatives of missing persons pursuant to the DNA
Identification Act shall not be performed against DNA indexes consisting of
evidentiary samples resulting from criminal investigations."
Section 4. Section 29-16-1 NMSA 1978 (being Laws 1997,
Chapter 105, Section 1) is amended to read:
"29-16-1. SHORT TITLE.--Chapter 29, Article 16 NMSA
1978 may be cited as the "DNA Identification Act"."
Section 5. Section 29-16-2 NMSA 1978 (being Laws 1997,
Chapter 105, Section 2) is amended to read:
"29-16-2. PURPOSE OF ACT.--The purpose of the DNA
Identification Act is to:
A. establish a DNA identification system for
covered offenders;
B. facilitate the use of DNA records by local,
state and federal law enforcement agencies in the identification, detection or
exclusion of persons in connection with criminal investigations;
C. establish a missing persons DNA
identification system consisting of the following DNA indexes:
(1) unidentified persons;
(2) unidentified human remains; and
(3) relatives of, or known reference samples
from, missing persons; and
D. facilitate the use of DNA records by local,
state and federal law enforcement agencies and the state medical investigator
in the identification and location of missing and unidentified persons or human
remains."
Section 6. Section 29-16-3 NMSA 1978 (being Laws 1997,
Chapter 105, Section 3) is amended to read:
"29-16-3. DEFINITIONS.--As used in the DNA
Identification Act:
A. "administrative center" means the
law enforcement agency or unit that administers and operates the DNA
identification system;
B. "DNA oversight committee" means the
DNA identification system oversight committee;
C. "CODIS" means the federal bureau of
investigation's national DNA index system for storage and exchange of DNA
records submitted by forensic DNA laboratories;
D. "covered offender" means any person
convicted of a felony offense as an adult under the Criminal Code, the Motor
Vehicle Code or the constitution of New Mexico or convicted as an adult
pursuant to youthful offender or serious youthful offender proceedings under
the Children's Code;
E. "department" means the department
of public safety;
F. "DNA" means deoxyribonucleic acid
as the basis of human heredity;
G. "DNA identification system" means
the DNA identification system established pursuant to the DNA Identification
Act;
H. "DNA records" means the results of
DNA testing and related information;
I. "DNA testing" means a forensic DNA
analysis that includes restriction fragment length polymorphism, polymerase
chain reaction or other valid methods of DNA typing performed to obtain
identification characteristics of samples;
J. "fund" means the DNA identification
system fund;
K. "missing persons DNA identification
system" means the missing persons DNA identification system established by
the DNA Identification Act; and
L. "sample" means a sample of
biological material sufficient for DNA testing."
Section 7. Section 29-16-4 NMSA 1978 (being Laws 1997,
Chapter 105, Section 4) is amended to read:
"29-16-4. ADMINISTRATIVE CENTER--POWERS AND
DUTIES--TRANSFER TO OTHER LAW ENFORCEMENT AGENCY.--
A. The administrative center shall be an
appropriate unit of the department or such other qualified New Mexico law
enforcement agency as the secretary of public safety may designate in
accordance with this section.
B. The administrative center shall:
(1) establish and administer the DNA
identification system. The DNA
identification system shall provide for collection, storage, DNA testing,
maintenance and comparison of samples and DNA records for forensic and
humanitarian purposes. Those purposes
shall include generation of investigative leads, statistical analysis of DNA
profiles and identification of missing persons and unidentified human
remains. Procedures used for DNA testing
shall be compatible with the procedures the federal bureau of investigation has
specified, including comparable test procedures, laboratory equipment, supplies
and computer software. Procedures used
shall meet or exceed the provisions of the federal DNA Identification Act of
1994 regarding minimum standards for state participation in CODIS, including
minimum standards for the acceptance, security and dissemination of DNA
records;
(2) coordinate sample collection activities;
(3) perform or contract for DNA testing;
(4) serve as a repository for samples and DNA
records;
(5) act as liaison with the federal bureau of
investigation for purposes of CODIS;
(6) adopt rules and procedures governing:
(a) sample collection;
(b) DNA testing;
(c) the DNA identification system and DNA
records; and
(d) the acceptance, security and dissemination of
DNA records;
(7) be reimbursed for, pursuant to the DNA
Identification Act, the costs of sample collection and DNA testing of samples
taken for the purposes of the identification of missing persons and unidentified
human remains; and
(8) establish and administer the missing persons
DNA identification system as a part of the DNA identification system.
C. The secretary of public safety may designate,
pursuant to a joint powers agreement, the crime laboratory of the police
department for the largest municipality in a class A county having a population
of more than two hundred fifty thousand at the most recent federal decennial
census to act as the administrative center.
D. The secretary of public safety may designate,
pursuant to a joint powers agreement, any other law enforcement agency to act
as administrative center upon recommendation of five voting members of the DNA
advisory committee."
Section 8. Section 29-16-5 NMSA 1978 (being Laws 1997,
Chapter 105, Section 5) is amended to read:
"29-16-5. DNA OVERSIGHT COMMITTEE--CREATED--POWERS AND
DUTIES.--
A. The "DNA identification system oversight
committee" is created. The DNA
oversight committee shall be composed of nine voting members as follows:
(1) a scientific representative from the
department crime laboratory appointed by the secretary of public safety;
(2) a scientific representative from the crime
laboratory of the police department for the largest municipality in a class A
county having a population of more than two hundred fifty thousand at the most
recent federal decennial census;
(3) the secretary of corrections or his
designated representative;
(4) the state medical investigator or his
designated representative;
(5) the attorney general or his designated
representative;
(6) the president of the district attorneys
association or his designated representative;
(7) the chief public defender or his designated
representative;
(8) the president of the New Mexico criminal
defense lawyers association or his designated representative; and
(9) the head of the administrative center or his
designated representative.
B. The DNA oversight committee shall adopt rules
and procedures regarding the administration and operation of the DNA
identification system.
C. The administrative center shall review and
make recommendations to the DNA oversight committee regarding rules and
procedures for the administration and operation of the DNA identification
system.
D. The DNA oversight committee shall oversee the
establishment and administration of the missing persons DNA identification
system as part of the DNA identification system.
E. The DNA oversight committee shall adopt rules
and procedures regarding the administration and operation of the missing
persons DNA identification system as part of the DNA identification
system."
Section 9. Section 29-16-6 NMSA 1978 (being Laws 1997,
Chapter 105, Section 6) is amended to read:
"29-16-6. COLLECTION OF SAMPLES.--
A. A covered offender shall provide one or more
samples to the administrative center, as follows:
(1) a covered offender convicted on or after July
1, 1997 shall provide a sample immediately upon request of the corrections
department so long as the request is made before release from any correctional
facility or, if the covered offender is not sentenced to incarceration, before
the end of any period of probation or other supervised release;
(2) a covered offender incarcerated on or after
July 1, 1997 shall provide a sample immediately upon request of the corrections
department so long as the request is made before release from any correctional
facility; and
(3) a covered offender on probation or other
supervised release on or after July 1, 1997 shall provide a sample immediately
upon request of the corrections department so long as the request is made
before the end of any period of probation or other supervised release.
B. Samples from unidentified persons or
relatives of a missing person shall be provided to the administrative center,
as follows:
(1) upon the completion of a permission to search
form authorizing the collection of a DNA sample;
(2) upon the receipt of a properly executed
search warrant; or
(3) upon the issuance of a court order.
C. Samples from unidentified human remains shall
be provided by the state medical investigator.
D. Samples of known reference materials from
missing persons shall be provided by the investigating law enforcement
agency."
Section 10. Section 29-16-7 NMSA 1978 (being Laws 1997,
Chapter 105, Section 7) is amended to read:
"29-16-7. PROCEDURES FOR COLLECTION OF SAMPLES.--
A. The collection of samples pursuant to the
provisions of Section 29‑16‑6 NMSA 1978 shall be conducted in a
medically approved manner in accordance with rules and procedures adopted by
the DNA oversight committee.
B. A person who collects samples shall be
trained in procedures that meet the requirements and standards specified in
Subsection A of this section.
C. A person authorized to collect samples and
his employer shall be immune from liability in any civil or criminal action
with regard to the collection of samples, if the collection is performed
without negligence. This subsection
shall not be deemed to create any additional liability or waive any immunity of
public employees under the Tort Claims Act.
D. Samples shall be stored in accordance with
rules and procedures adopted by the administrative center.
E. DNA testing shall be performed by the administrative
center or a contract facility it may designate.
F. DNA records and samples shall be securely
classified and stored by the administrative center."
Section 11. Section 29-16-8 NMSA 1978 (being Laws 1997,
Chapter 105, Section 8) is amended to read:
"29-16-8. CONFIDENTIALITY--DISCLOSURE AND DISSEMINATION
OF DNA RECORDS.--
A. DNA records and samples are confidential and
shall not be disclosed except as authorized in the DNA Identification Act
pursuant to the rules and regulations developed and adopted by the DNA
oversight committee.
B. The administrative center shall make DNA
records available for identification, comparison and investigative purposes to
local, state and federal law enforcement agencies and the state medical
investigator pursuant to the rules developed and adopted by the DNA oversight
committee. The administrative center may
disseminate statistical or research information derived from samples and DNA
testing if all personal identification is removed pursuant to the rules developed
and adopted by the DNA oversight committee."
Section 12. EFFECTIVE DATE.--The effective date of the
provisions of this act is July 1, 2003.