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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.

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:

"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,

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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

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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

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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;

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(6) adopt rules and procedures governing:

(a) sample collection;

(b) DNA testing;

DNA records;

(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;

(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;

(9) establish and administer the missing

persons DNA identification system as a part of the DNA

identification system; and

(10) establish and administer the sex

offender DNA identification system as part of the DNA

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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 to the corrections department 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

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after July 1, 1997 shall provide a sample immediately upon

request to the corrections department 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 to the corrections

department 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 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;

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(2) the sample is in the possession of the

administrative center; and

(3) the sample has not been expunged.

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.

D. Samples from unidentified human remains shall

be provided by the state medical investigator.

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

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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;

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(2) unidentified human remains;

(3) relatives of, or known reference

samples from, missing persons;

(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:

(1) provide a sample; or

(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

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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 the

person's sample and DNA records from the DNA identification

system on the following grounds:

(1) the conviction that led to the

inclusion of the sample 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;

(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

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the sample and DNA records; and

(2) a certified copy of a court order that

reverses the conviction that led to the inclusion of the

sample; 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:

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"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 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. SEXUAL ASSAULT--SUBMISSION OF DNA SAMPLES

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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

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characteristics of samples; and

(6) "sample" means a sample of biological

material sufficient for DNA testing.

Section 11. 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 12. EFFECTIVE DATE.--

The effective date of the provisions of this act

is January 1, 2007.