0001| SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR | 0002| SENATE BILL 114 | 0003| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0004| | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| | 0011| AN ACT | 0012| RELATING TO CRIMINAL LAW; ENACTING THE DNA IDENTIFICATION ACT; | 0013| PROVIDING FOR COLLECTION OF DNA SAMPLES FROM CONVICTED FELONS; | 0014| ASSESSING A FEE; CREATING A FUND; PROVIDING A PENALTY; MAKING | 0015| AN APPROPRIATION. | 0016| | 0017| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0018| Section 1. SHORT TITLE.--This act may be cited as the | 0019| "DNA Identification Act". | 0020| Section 2. PURPOSE OF ACT.--The purpose of the DNA | 0021| Identification Act is to: | 0022| A. establish a DNA identification system for | 0023| covered offenders; and | 0024| B. facilitate the use of DNA records by local, | 0025| state and federal law enforcement agencies in the | 0001| identification, detection or exclusion of persons in connection | 0002| with criminal investigations. | 0003| Section 3. DEFINITIONS.--As used in the DNA | 0004| Identification Act: | 0005| A. "administrative center" means the law | 0006| enforcement agency or unit that administers and operates the | 0007| DNA identification system; | 0008| B. "DNA oversight committee" means the DNA | 0009| identification system oversight committee; | 0010| C. "CODIS" means the federal bureau of | 0011| investigation's national DNA index system for storage and | 0012| exchange of DNA records submitted by forensic DNA laboratories; | 0013| D. "covered offender" means any person convicted of | 0014| a felony offense as an adult under the Criminal Code, the Motor | 0015| Vehicle Code or the constitution of New Mexico or convicted as | 0016| an adult pursuant to youthful offender or serious youthful | 0017| offender proceedings under the Children's Code; | 0018| E. "department" means the department of public | 0019| safety; | 0020| F. "DNA" means deoxyribonucleic acid as the basis | 0021| of human heredity; | 0022| G. "DNA identification system" means the DNA | 0023| identification system established pursuant to the DNA | 0024| Identification Act; | 0025| H. "DNA records" means the results of DNA testing | 0001| and related information; | 0002| I. "DNA testing" means a forensic DNA analysis that | 0003| includes restriction fragment length polymorphism, polymerase | 0004| chain reaction or other valid methods of DNA typing performed to | 0005| obtain identification characteristics of samples; | 0006| J. "fund" means the DNA identification system fund; | 0007| and | 0008| K. "sample" means a sample of biological material | 0009| sufficient for DNA testing. | 0010| Section 4. ADMINISTRATIVE CENTER--POWERS AND DUTIES-- | 0011| TRANSFER TO OTHER LAW ENFORCEMENT AGENCY.-- | 0012| A. The administrative center shall be an appropriate | 0013| unit of the department or such other qualified New Mexico law | 0014| enforcement agency as the secretary of public safety may designate | 0015| in accordance with this section. | 0016| B. The administrative center shall: | 0017| (1) establish and administer the DNA | 0018| identification system. The DNA identification system shall | 0019| provide for collection, storage, DNA testing, maintenance and | 0020| comparison of samples and DNA records for forensic purposes. Such | 0021| purposes shall include generation of investigative leads and | 0022| statistical analysis of DNA profiles. Procedures used for DNA | 0023| testing shall be compatible with the procedures the federal bureau | 0024| of investigation has specified, including comparable test | 0025| procedures, laboratory equipment, supplies and computer software. | 0001| Procedures used shall meet or exceed the provisions of the federal | 0002| DNA Identification Act of 1994 regarding minimum standards for | 0003| state participation in CODIS, including minimum standards for the | 0004| acceptance, security and dissemination of DNA records; | 0005| (2) coordinate sample collection activities; | 0006| (3) perform or contract for DNA testing; | 0007| (4) serve as a repository for samples and DNA | 0008| records; | 0009| (5) act as liaison with the federal bureau of | 0010| investigation for purposes of CODIS; and | 0011| (6) adopt regulations and procedures governing: | 0012| (a) sample collection; | 0013| (b) DNA testing; | 0014| (c) the DNA identification system and DNA | 0015| records; and | 0016| (d) the acceptance, security and | 0017| dissemination of DNA records. | 0018| C. The secretary of public safety may designate, | 0019| pursuant to a joint powers agreement, the crime laboratory of the | 0020| police department for the largest municipality in a class A county | 0021| having a population of more than two hundred fifty thousand at the | 0022| most recent federal decennial census to act as the administrative | 0023| center. | 0024| D. The secretary of public safety may designate, | 0025| pursuant to a joint powers agreement, any other law enforcement | 0001| agency to act as administrative center upon recommendation of five | 0002| voting members of the advisory committee. | 0003| Section 5. DNA OVERSIGHT COMMITTEE--CREATED--POWERS AND | 0004| DUTIES.-- | 0005| A. The "DNA identification system oversight committee" | 0006| is created. The DNA oversight committee shall be composed of nine | 0007| voting members as follows: | 0008| (1) a scientific representative from the | 0009| department crime laboratory appointed by the secretary of public | 0010| safety; | 0011| (2) a scientific representative from the crime | 0012| laboratory of the police department for the largest municipality | 0013| in a class A county having a population of more than two hundred | 0014| fifty thousand at the most recent federal decennial census; | 0015| (3) the secretary of corrections or his | 0016| designated representative; | 0017| (4) the state medical investigator or his | 0018| designated representative; | 0019| (5) the attorney general or his designated | 0020| representative; | 0021| (6) the president of the district attorney's | 0022| association or his designated representative; | 0023| (7) the chief public defender or his designated | 0024| representative; and | 0025| (8) the president of the New Mexico criminal | 0001| defense lawyers association or his designated representative; and | 0002| (9) the head of the administrative center or his | 0003| designated representative. | 0004| B. The DNA oversight committee shall adopt rules, | 0005| regulations and procedures regarding the administration and | 0006| operation of the DNA identification system. | 0007| C. The administrative center shall review and make | 0008| recommendations to the DNA oversight committee regarding rules, | 0009| regulations and procedures for the administration and operation of | 0010| the DNA identification system. | 0011| Section 6. COVERED OFFENDERS SUBJECT TO COLLECTION OF | 0012| SAMPLES.--Each covered offender shall provide one or more samples | 0013| to the administrative center, as follows: | 0014| A. covered offenders convicted on or after the | 0015| effective date of the DNA Identification Act shall provide a | 0016| sample at any time before release from any correctional facility | 0017| or, if the covered offender is not sentenced to incarceration, | 0018| before the end of any period of probation or other supervised | 0019| release; | 0020| B. covered offenders incarcerated on the effective | 0021| date of the DNA Identification Act shall provide a sample at any | 0022| time before release from any correctional facility; and | 0023| C. covered offenders on probation or other supervised | 0024| release on the effective date of the DNA Identification Act shall | 0025| provide a sample before the end of any period of probation or | 0001| other supervised release. | 0002| Section 7. PROCEDURES FOR COLLECTION OF SAMPLES.-- | 0003| A. The collection of samples pursuant to the | 0004| provisions of Section 6 of the DNA Identification Act shall be | 0005| conducted in a medically approved manner in accordance with rules, | 0006| regulations and procedures adopted by the DNA oversight committee. | 0007| B. All persons who collect samples shall be trained in | 0008| procedures that meet the requirements and standards specified in | 0009| Subsection A of this section. | 0010| C. All persons authorized to collect samples and their | 0011| employers shall be immune from liability in any civil or criminal | 0012| action with regard to the collection of samples, if the collection | 0013| is performed without negligence. This subsection shall not be | 0014| deemed to create any additional liability or waive any immunity of | 0015| public employees under the Tort Claims Act. | 0016| D. Samples shall be stored in accordance with rules, | 0017| regulations and procedures adopted by the administrative center. | 0018| E. DNA testing shall be performed by the | 0019| administrative center or a contract facility it may designate. | 0020| F. DNA records and samples shall be securely | 0021| classified and stored at the administrative center. | 0022| Section 8. CONFIDENTIALITY--DISCLOSURE AND DISSEMINATION OF | 0023| DNA RECORDS.-- | 0024| A. DNA records and samples are confidential and shall | 0025| not be disclosed except as authorized in the DNA Identification | 0001| Act. | 0002| B. The administrative center shall make DNA records | 0003| available for identification, comparison and investigative | 0004| purposes to local, state and federal law enforcement agencies. | 0005| The administrative center may disseminate statistical or research | 0006| information derived from samples and DNA testing if all personal | 0007| identification is removed. | 0008| Section 9. ENFORCEMENT.--The attorney general or a district | 0009| attorney may petition a district court for an order requiring a | 0010| covered offender to: | 0011| A. provide a sample; or | 0012| B. provide a sample by alternative means if the | 0013| covered offender will not cooperate. | 0014| Section 10. EXPUNGEMENT OF SAMPLES AND DNA RECORDS FROM THE | 0015| DNA IDENTIFICATION SYSTEM AND CODIS.-- | 0016| A. A person may request expungement of his sample and | 0017| DNA records from the DNA identification system on the grounds that | 0018| the conviction that led to the inclusion of his sample and DNA | 0019| records in the DNA identification system has been reversed. | 0020| B. The administrative center shall expunge a person's | 0021| sample and DNA records from the DNA identification system when the | 0022| person provides the administrative center with the following | 0023| materials: | 0024| (1) a written request for expungement of his | 0025| sample and DNA records; and | 0001| (2) a certified copy of a court order that | 0002| reverses the conviction that led to the inclusion of his sample | 0003| and DNA records in the DNA identification system. | 0004| C. When a person's sample and DNA records are expunged | 0005| from the DNA identification system, the head of the administrative | 0006| center shall ensure that the person's sample and DNA records are | 0007| expunged from CODIS. | 0008| Section 11. ASSESSMENT OF FEE.--On and after the effective | 0009| date of the DNA Identification Act, when a covered offender is | 0010| convicted, the court shall assess a fee of one hundred dollars | 0011| ($100) in addition to any other fee, restitution or fine. The fee | 0012| shall be deposited in the fund. | 0013| Section 12. PENALTY.-- | 0014| A. Any person who by virtue of his employment or | 0015| official position possesses or has access to samples or DNA | 0016| records and who willfully discloses any of them to any person or | 0017| in any manner not authorized by the DNA Identification Act is | 0018| guilty of a fourth degree felony and shall be sentenced pursuant | 0019| to the provisions of Section 31-18-15 NMSA 1978. | 0020| B. Any person who uses or attempts to use samples or | 0021| DNA records for a purpose not authorized by the DNA Identification | 0022| Act is guilty of a fourth degree felony and shall be sentenced | 0023| pursuant to the provisions of Section 31-18-15 NMSA 1978. | 0024| C. Any person who obtains or attempts to obtain | 0025| samples or DNA records for a purpose not authorized by the DNA | 0001| Identification Act is guilty of a fourth degree felony and shall | 0002| be sentenced pursuant to the provisions of Section 31-18-15 NMSA | 0003| 1978. | 0004| Section 13. DNA FUND CREATED--PURPOSES.-- | 0005| A. The "DNA identification system fund" is created in | 0006| the state treasury. | 0007| B. The fund shall consist of all money received by | 0008| appropriation, gift or grant, all money collected pursuant to | 0009| Section 11 of the DNA Identification Act and all investment income | 0010| from the fund. | 0011| C. Money and investment income in the fund at the end | 0012| of any fiscal year shall not revert to the general fund but shall | 0013| remain in the fund. | 0014| D. Money and investment income in the fund is | 0015| appropriated to the administrative center for expenditure in | 0016| fiscal year 1998 and subsequent fiscal years for the purposes of | 0017| the fund. | 0018| E. The fund shall be used for the purposes of the DNA | 0019| Identification Act, including paying the expenses incurred by the | 0020| administrative center and all other reasonable expenses. The | 0021| administrative center may use money in the fund for loans or | 0022| grants of money, equipment or personnel to any law enforcement | 0023| agency, correctional facility, judicial agency, the public | 0024| defender department or the office of the medical investigator, | 0025| upon recommendation of the DNA oversight committee. | 0001| Section 14. EFFECTIVE DATE.--The effective date of the | 0002| provisions of this act is July 1, 1997. | 0003|  |