HOUSE BILL 130

47th legislature - STATE OF NEW MEXICO - second session, 2006

INTRODUCED BY

John A. Heaton

AN ACT

RELATING TO LAW ENFORCEMENT; REQUIRING COLLECTION OF DNA SAMPLES FROM ALL PERSONS ARRESTED FOR CRIMINAL OFFENSES THAT AMOUNT TO FELONIES; MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. Section 29-3-8 NMSA 1978 (being Laws 1978, Chapter 87, Section 1, as amended) is amended to read:

     "29-3-8. FINGERPRINTING OF AND DNA COLLECTION FROM PERSONS ARRESTED--DISPOSITION.--

          A. A person arrested for the commission of a criminal offense amounting to a felony under the laws of this state or any other jurisdiction shall be required by the arresting peace officer or the jail to:

                (1) make fingerprint impressions prior to the person's release. The arresting peace officer or the jail shall obtain fingerprint impressions and a photograph each time a person is arrested. At the time of fingerprinting, a state tracking number shall be assigned to the fingerprint records and the booking sheet; and

                (2) provide a DNA sample prior to the person's release from custody, unless the arresting peace officer or the jail determines that the person had previously provided a DNA sample while in the custody of the corrections department, to a county sheriff pursuant to registration as a sex offender or to a jail or detention center pursuant to a previous arrest and the sample has not been expunged.

          B. A person arrested for the commission of a criminal offense not amounting to a felony but punishable by imprisonment for more than six months under the laws of this state or any political subdivision shall be required by the arresting peace officer or the jail to make fingerprint impressions prior to the person's release. The arresting peace officer or the jail shall obtain fingerprint impressions and a photograph each time a person is arrested. At the time of fingerprinting, a state tracking number shall be assigned to the fingerprint records and the booking sheet.

          C. A person arrested for violating a provision of Section 66-8-102 NMSA 1978 or committing a violation of a municipal or county ordinance prescribing criminal penalties for driving while under the influence of intoxicating liquor or drugs shall be required by the arresting peace officer or the jail to make fingerprint impressions prior to the person's release. The arresting peace officer or the jail shall obtain fingerprint impressions and a photograph each time a person is arrested. At the time of fingerprinting, a state tracking number shall be assigned to the fingerprint records and the booking sheet.

          D. Fingerprint impressions shall be made pursuant to rules adopted by the department. Fingerprint record submission policies and a state tracking number system for fingerprint records shall be implemented pursuant to rules adopted by the department. All felony, misdemeanor and DWI arrest fingerprints shall be made in duplicate. Both copies and a photograph of the person arrested shall be forwarded to the department within five days following the date of arrest. The department shall forward one copy to the federal bureau of investigation in Washington, D.C.

          E. Arresting peace officers or jail personnel who collect DNA samples pursuant to this section shall forward the sample, within twenty-four hours of collection, to the administrative center that operates the DNA identification system pursuant to the DNA Identification Act. DNA samples shall be collected in accordance with rules and procedures adopted by the DNA oversight committee, shall be subject to the confidentiality provisions of the DNA Identification Act and shall be used only as authorized by that act.

          [E.] F. An inmate who is charged with a felony or misdemeanor offense while incarcerated shall be fingerprinted and photographed, and the jail or corrections facility shall forward the offender's fingerprint records and photograph to the department.

          [F.] G. The administrative office of the courts shall provide to the department the disposition of all criminal cases assigned a state tracking number. The disposition shall be provided in electronic format, promptly upon the conclusion of the case.

          [G.] H. The administrative office of the district attorneys shall provide to the department the disposition of all criminal cases assigned a state tracking number, when the district attorney decides not to file charges in the case. The disposition shall be provided in electronic format, promptly upon a district attorney's decision not to file charges in the case.

          [H.] I. Law enforcement agencies, the administrative office of the courts and the administrative office of the district attorneys may allow the department access to their records for the purpose of auditing those records to ensure compliance with the provisions of this section.

          J. As used in this section:

                (1) "DNA" means deoxyribonucleic acid as the basis of human heredity; and

                (2) "DNA sample" means a sample of biological material sufficient for DNA testing."

     Section 2. Section 29-16-2 NMSA 1978 (being Laws 1997, Chapter 105, Section 2, as amended) 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 and persons arrested for a criminal offense that amounts to a felony;

          B. facilitate the use of DNA records by local, state and federal law enforcement agencies in the:                         (1) identification, detection or exclusion of persons in connection with criminal investigations; and

                (2) registration of sex offenders required to register pursuant to the provisions of the Sex Offender Registration and Notification Act;

          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 3. Section 29-16-4 NMSA 1978 (being Laws 1997, Chapter 105, Section 4, as amended) 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) facilitate communication between local, state and federal law enforcement agencies, the corrections department and local jails and detention centers in order to minimize duplicate sample collections from the same individual;

                (8) provide training to law enforcement officers and jail personnel who are required to collect samples pursuant to Section 29-3-8 NMSA 1978;

                [(7)] (9) 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;

                [(8)] (10) establish and administer the missing persons DNA identification system as a part of the DNA identification system; and

                [(9)] (11) establish and administer the sex offender DNA identification system as 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 4. Section 29-16-6 NMSA 1978 (being Laws 1997, Chapter 105, Section 6, as amended) 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] as 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] as long as the request is made before release from any correctional facility;

                (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] as long as the request is made before the end of any period of probation or other supervised release; and

                (4) a covered offender required to register or renew his registration pursuant to the provisions of the Sex Offender Registration and Notification Act shall provide a sample immediately upon request by the county sheriff located in any county in which the sex offender is required to register, unless the sex offender provided a sample while in the custody of the corrections department or to the county sheriff of another county in New Mexico in which the sex offender is registered.

          B. A person arrested on or after January 1, 2007 for a criminal offense that amounts to a felony shall provide a sample immediately upon the request of the arresting law enforcement officer or jail personnel if the request is made before release from custody, unless:

                (1) the person has previously provided a sample pursuant to the provisions of this section; and

                (2) the sample has not been expunged.

          [B.] C. 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.] D. Samples from unidentified human remains shall be provided by the state medical investigator.

          [D.] E. Samples of known reference materials from missing persons shall be provided by the investigating law enforcement agency."

     Section 5. Section 29-16-8 NMSA 1978 (being Laws 1997, Chapter 105, Section 8, as amended) 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.

          C. To minimize duplicate sample collection and testing, the administrative center may make information available, by secure electronic methods or otherwise, to local, state and federal law enforcement agencies, the corrections department, jails and detention centers for the purpose of verifying whether a sample has been collected from a specific individual. Information provided under this subsection shall not include any results of DNA testing."

     Section 6. Section 29-16-9 NMSA 1978 (being Laws 1997, Chapter 105, Section 9) is amended to read:

     "29-16-9. ENFORCEMENT.--The attorney general or a district attorney may petition a district court for an order requiring a covered offender or a person arrested for the commission of a criminal offense that amounts to a felony under the laws of this state or any other jurisdiction to:

          A. provide a sample; or

          B. provide a sample by alternative means if the covered offender or person will not cooperate."

     Section 7. Section 29-16-10 NMSA 1978 (being Laws 1997, Chapter 105, Section 10) is amended to read:

     "29-16-10. EXPUNGEMENT OF SAMPLES AND DNA RECORDS FROM THE DNA IDENTIFICATION SYSTEM AND CODIS.--

          A. A person may request expungement of [his] the person's sample and DNA records from the DNA identification system on the following grounds [that]:

                (1) the conviction that led to the inclusion of [his] the sample and DNA records in the DNA identification system has been reversed; or 

                (2) the felony charge that led to the inclusion of the sample and DNA records in the DNA identification system has been dismissed with prejudice or the person has been acquitted.

          B. The administrative center shall expunge a person's sample and DNA records from the DNA identification system when the person provides the administrative center with the following materials:

                (1) a written request for expungement of [his] the sample and DNA records; and

                (2) a certified copy of a court order that reverses the conviction that led to the inclusion of [his] the sample and DNA records in the DNA identification system; or

                (3) a certified copy of the dismissal with prejudice or an acquittal from the felony charge that led to the inclusion of the sample and DNA records in the DNA identification system.

          C. When a person's sample and DNA records are expunged from the DNA identification system, the head of the administrative center shall ensure that the person's sample and DNA records are expunged from CODIS."

     Section 8. Section 29-16-13 NMSA 1978 (being Laws 1997, Chapter 105, Section 13) is amended to read:

     "29-16-13. DNA FUND CREATED--PURPOSES.--

          A. The "DNA identification system fund" is created in the state treasury.

          B. The fund shall consist of all money received by appropriation, gift or grant, all money collected pursuant to Section [11 of the DNA Identification Act] 29-16-11 NMSA 1978 and all investment income from the fund.

          C. Money and investment income in the fund at the end of any fiscal year shall not revert to the general fund but shall remain in the fund.

          D. Money and investment income in the fund is appropriated to the administrative center for expenditure in fiscal year 1998 and subsequent fiscal years for the purposes of the fund.

          E. The fund shall be used for the purposes of the DNA Identification Act, including paying the expenses incurred by the administrative center and all other reasonable expenses. The administrative center may use money in the fund for loans or grants of money, equipment or personnel to any law enforcement agency, correctional facility, jail, detention center, judicial agency, the public defender department or the office of the state medical investigator, upon recommendation of the DNA oversight committee."

     Section 9. APPROPRIATION.--Three hundred sixty thousand dollars ($360,000) is appropriated from the general fund to the DNA identification system fund for expenditure in fiscal year 2007 and subsequent fiscal years for staff, training, equipment and operating and administrative costs associated with collecting DNA samples from all persons arrested for a criminal offense that amounts to a felony. Any unexpended or unencumbered balance remaining at the end of a fiscal year shall not revert to the general fund.

     Section 10. EFFECTIVE DATE.--

          A. The effective date of the provisions of Sections 1 through 8 of this act is January 1, 2007.

          B. The effective date of the provisions of Section 9 of this act is July 1, 2006.

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