Committee Substitute for HB0130JCS

HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 130

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

AN ACT

RELATING TO LAW ENFORCEMENT; REQUIRING COLLECTION OF DNA SAMPLES FROM ALL PERSONS EIGHTEEN YEARS OF AGE OR OVER WHO ARE ARRESTED FOR CERTAIN FELONY OFFENSES; REQUIRING SUBMISSION OF DNA SAMPLES COLLECTED PURSUANT TO MEDICAL EXAMINATIONS OF SEXUAL ASSAULT VICTIMS; MAKING AN APPROPRIATION.

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

Section 1. A new section of Chapter 29, Article 3 NMSA 1978 is enacted to read:

"[NEW MATERIAL] DNA COLLECTION FROM PERSONS ARRESTED.--

A. A person eighteen years of age or over who is arrested for the commission of a felony under the laws of this state or any other jurisdiction shall provide a DNA sample to jail or detention facility personnel upon booking. A sample is not required if it is determined that a sample has previously been taken, is in the possession of the administrative center, has not been expunged pursuant to the DNA Identification Act and is sufficient for DNA identification testing.

B. Jail or detention facility personnel who collect samples pursuant to this section shall forward the samples to the administrative center.

C. Samples shall be collected in accordance with rules and procedures adopted by the DNA oversight committee, shall be subject to the confidentiality and penalty provisions of the DNA Identification Act and shall be used only as authorized by that act.

D. As used in this section:

(1) "administrative center" means the law enforcement agency or unit that administers and operates the DNA identification system pursuant to the provisions of the DNA Identification Act;

(2) "DNA" means deoxyribonucleic acid;

(3) "felony" means:

(a) a sex offense as defined in the provisions of Section 29-11A-3 NMSA 1978 that is a felony; or

(b) any other felony offense that involves death, great bodily harm, aggravated assault, kidnapping, burglary, larceny, robbery, aggravated stalking, use of a firearm or an explosive or a violation pursuant to the Antiterrorism Act; and

(4) "sample" means a sample of biological material that is 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 required to provide a DNA sample pursuant to the provisions of Section 1 of this 2006 act;

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;

(d) the acceptance, security and dissemination of DNA records; and

(e) communication between local, state and federal law enforcement agencies, the corrections department and local jails and detention facilities in order to minimize duplicate sample collections from the same individual;

(7) provide training to jail and detention facility personnel who are required to collect samples pursuant to Section 1 of this 2006 act;

[(7)] (8) 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)] (9) establish and administer the missing persons DNA identification system as a part of the DNA identification system; and

[(9)] (10) 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] to 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] to 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] to 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] to 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 eighteen years of age or over who is arrested on or after January 1, 2007 for the commission of a felony as provided in Section 1 of this 2006 act shall provide a sample immediately upon request to jail or detention facility personnel, unless:

(1) the person has previously provided a sample sufficient for DNA testing pursuant to the provisions of this section;

(2) the sample is in the possession of the administrative center; and

(3) 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, to local, state and federal law enforcement agencies, the corrections department, jails and detention facilities for the purpose of verifying whether a sample has been collected from a specific individual. Information provided under this subsection shall not include DNA testing results."

Section 6. Section 29-16-8.1 NMSA 1978 (being Laws 2003, Chapter 256, Section 3) is amended to read:

"29-16-8.1. 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; and

(5) persons arrested for the commission of a felony as provided in Section 1 of this 2006 act.

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

"29-16-9. ENFORCEMENT.--

A. The attorney general or a district attorney may petition a district court for an order requiring a covered offender or a person required to provide a DNA sample pursuant to the provisions of Section 1 of this 2006 act to:

[A.] (1) provide a sample; or

[B.] (2) provide a sample by alternative means if the covered offender or person will not cooperate.

B. Nothing in this section shall prevent the collection of samples by order of a court of competent jurisdiction or the collection of samples of covered offenders."

Section 8. 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 arrest that led to the inclusion of the sample has:

(a) resulted in a felony charge that has been resolved by a dismissal, nolle prosequi, successful completion of a pre-prosecution diversion program or a conditional discharge, misdemeanor conviction or acquittal; or

(b) not resulted in a felony charge within one year of arrest.

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) for samples included pursuant to arrest:

(a) a certified copy of the dismissal, nolle prosequi, successful completion of a pre-prosecution diversion program or a conditional discharge, misdemeanor conviction or acquittal; or

(b) a sworn affidavit that no felony charges arising out of the arrest have been filed within one year.

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.

D. The administrative center shall not expunge a person's sample and DNA records from the DNA identification system if the person has a prior felony conviction or a pending felony charge for which collection of a sample is authorized pursuant to the provisions of the DNA Identification Act."

Section 9. 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 facility, judicial agency, the public defender department or the office of the state medical investigator, upon recommendation of the DNA oversight committee."

Section 10. [NEW MATERIAL] SEXUAL ASSAULT--SUBMISSION OF DNA SAMPLES BY LAW ENFORCEMENT AND LABORATORIES.--

A. Samples from biological material collected pursuant to a medical examination of a sexual assault victim shall be submitted by the investigating law enforcement agency to that agency's servicing laboratory for DNA testing. Records derived from DNA testing that qualify for insertion into CODIS shall be submitted by the servicing laboratory to the administrative center.

B. As used in this section:

(1) "administrative center" means the law enforcement agency or unit that administers and operates the DNA identification system pursuant to the provisions of the DNA Identification Act;

(2) "biological material" means material that is derived from a human body and includes bodily fluids, hair and skin cells;

(3) "CODIS" means the federal bureau of investigation's national DNA index system for storage and exchange of DNA records submitted by forensic DNA laboratories;

(4) "DNA" means deoxyribonucleic acid;

(5) "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; and

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

Section 11. 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 12. SEVERABILITY.--If any part or application of this act is held invalid, the remainder or its application to other situations or persons shall not be affected.

Section 13. EFFECTIVE DATE.--

A. The effective date of the provisions of Sections 1 through 10 and 12 of this act is January 1, 2007.

B. The effective date of the provisions of Section 11 of this act is July 1, 2006.

- 15 -