SB-0105, As Passed House, December 18, 2014
SUBSTITUTE FOR
SENATE BILL NO. 105
A bill to amend 1990 PA 250, entitled
"DNA identification profiling system act,"
by amending the title and sections 2, 3, 3a, 5, and 6 (MCL 28.172,
28.173, 28.173a, 28.175, and 28.176), the title and section 3 as
amended by 1998 PA 522, sections 2 and 6 as amended and section 5
as added by 2008 PA 535, and section 3a as amended by 2008 PA 533.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An act to provide for a DNA identification profiling system;
to provide for the collection of samples from individuals arrested
for committing or attempting to commit a felony offense or an
offense that would be a felony if committed by an adult, certain
prisoners, convicted offenders, and juvenile offenders and the
analysis of those samples; to provide for retention, disposal, and
expunction of samples and profiles under certain circumstances; and
to prescribe the powers and duties of certain state departments and
county agencies.
Sec. 2. As used in this act:
(a) "Conviction" means a plea of guilty, guilty but mentally
ill, or nolo contendere if accepted by the court, or a jury verdict
or court finding that a defendant is guilty or guilty but mentally
ill for a criminal law violation, or a juvenile adjudication or
disposition for a criminal law violation that if committed by an
adult would be a crime.
(b) (a)
"Department" means the
department of state police.
(c) (b)
"DNA identification
profile" or "profile" means the
results of the DNA identification profiling of a sample, including
a paper, electronic, or digital record.
(d) (c)
"DNA identification
profiling" means a validated
scientific method of analyzing components of deoxyribonucleic acid
molecules in a biological specimen to determine a match or a
nonmatch between a reference sample and an evidentiary sample.
(e) (d)
"Felony" means a
violation of a penal law of this
state for which the offender may be punished by imprisonment for
more than 1 year or an offense expressly designated by law to be a
felony.
(f) (e)
"Investigating law enforcement
agency" means the law
enforcement agency responsible for the investigation of the offense
for which the individual is arrested or convicted. Investigating
law enforcement agency includes the county sheriff but does not
include a probation officer employed by the department of
corrections.
(g) (f)
"Sample" means a portion
of an individual's blood,
saliva, or tissue collected from the individual.
Sec. 3. The department shall promulgate rules under the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328, to implement this act, including, but not limited to, rules
governing all of the following:
(a) The method of collecting samples in a medically approved
manner by qualified persons and the types and number of samples to
be collected by the following:
(i) The department of corrections from certain prisoners under
section 33d of the corrections code of 1953, 1953 PA 232, MCL
791.233d.
(ii) Law enforcement agencies from certain convicted
offenders
as provided under section 520m of the Michigan penal code, 1931 PA
328, MCL 750.520m, or certain juveniles under section 18k of
chapter XIIA of the probate code of 1939, 1939 PA 288, MCL
712A.18k.
(iii) The family independence agency department of human
services or a county juvenile agency, as applicable, from certain
juveniles under section 7a of the youth rehabilitation services
act, 1974 PA 150, MCL 803.307a, or section 5a of the juvenile
facilities act, 1988 PA 73, MCL 803.225a. As used in this
subparagraph, "county juvenile agency" means that term as defined
in section 2 of the county juvenile agency act, 1998 PA 518, MCL
45.622.
(b)
Distributing blood specimen vials, mailing tubes, and
labels
DNA database collection kits and instructions for collecting
samples.
(c) Storing and transmitting to the department the samples
described in subdivision (a).
(d) The DNA identification or genetic marker profiling of
samples described in subdivision (a).
(e) The development, in cooperation with the federal bureau of
investigation and other appropriate persons, of a system of filing,
cataloging, retrieving, and comparing DNA identification profiles
and computerizing this system.
(f) Protecting the privacy interests of individuals whose
samples are analyzed under this act.
Sec. 3a. (1) An individual required by law to provide samples
for DNA identification profiling who refuses to provide or resists
providing those samples is guilty of a misdemeanor punishable by
imprisonment for not more than 1 year or a fine of not more than
$1,000.00, or both. The individual shall be advised that his or her
resistance or refusal to provide samples described in this
subsection is a misdemeanor.
(2) If at the time an individual who is required by law to
provide samples for DNA identification profiling is arrested for
committing or attempting to commit a felony offense or is convicted
or found responsible the investigating law enforcement agency or
the department already has a sample from the individual that meets
the requirements of the rules promulgated under this act, the
individual is not required to provide another sample. However, if
an individual's DNA sample is inadequate for purposes of analysis,
the individual shall provide another DNA sample that is adequate
for analysis.
Sec. 5. (1) An individual shall not disseminate, receive, or
otherwise use or attempt to use information in the DNA
identification profile record knowing that the dissemination,
receipt, or use of that information is for a purpose not authorized
by
law. An individual who violates this subsection is guilty of a
misdemeanor
punishable by imprisonment for not more than 1 year or
a
fine of not more than $1,000.00, or both.
(2) An individual shall not willfully remove, destroy, tamper
with, or attempt to tamper with a DNA sample, record, or other DNA
information obtained or retained under this act without lawful
authority.
An individual who violates this subsection is guilty of
a
misdemeanor punishable by imprisonment for not more than 1 year
or
a fine of not more than $1,000.00, or both.
(3) An individual shall not, without proper authority, obtain
a DNA identification profile from the DNA identification profiling
system.
(4) An individual shall not, without proper authority, test a
DNA sample obtained under this act.
(5) An individual shall not willfully fail to destroy a DNA
sample or profile that has been required or ordered to be destroyed
under this act.
(6) Nothing in this section shall be considered to prohibit
the collection of a DNA sample in the course of a criminal
investigation by a law enforcement agency.
(7) An individual who violates this section is guilty of a
misdemeanor punishable by imprisonment for not more than 1 year or
a fine of not more than $1,000.00, or both.
Sec.
6. (1) The Except as otherwise
provided in this section,
the department shall permanently retain a DNA identification
profile of an individual obtained from a sample in the manner
prescribed by the department under this act if any of the following
apply:
(a)
The individual is found responsible for a violation of
section
83, 91, 316, 317, or 321 of the Michigan penal code, 1931
PA
328, MCL 750.83, 750.91, 750.316, 750.317, and 750.321, or a
violation
or attempted violation of section 349, 520b, 520c, 520d,
520e,
or 520g of the Michigan penal code, 1931 PA 328, MCL 750.349,
750.520b,
750.520c, 750.520d, 750.520e, and 750.520g, or a
violation
of section 167(1)(c) or (f) or 335a of the Michigan penal
code,
1931 PA 328, MCL 750.167 and 750.335a, or a local ordinance
substantially
corresponding to section 167(1)(c) or (f) or 335a of
the
Michigan penal code, 1931 PA 328, MCL 750.167 and 750.335a.
(a) The individual is arrested for committing or attempting to
commit a felony offense or an offense that would be a felony
offense if committed by an adult.
(b) The individual is convicted of or found responsible for a
felony or attempted felony, or any of the following misdemeanors,
or local ordinances that are substantially corresponding to the
following misdemeanors:
(i) A violation of section 145a of the Michigan penal
code,
1931
PA 328, MCL 750.145a, enticing a child for immoral purposes.
(i) (ii) A
violation of section 167(1)(c), (f), or (i) of the
Michigan penal code, 1931 PA 328, MCL 750.167, disorderly person by
window peeping, engaging in indecent or obscene conduct in public,
or loitering in a house of ill fame or prostitution.
(ii) (iii) A
violation of section 335a 335a(1)
of the Michigan
penal code, 1931 PA 328, MCL 750.335a, indecent exposure.
(iii) (iv) A
violation of punishable
under section 451 451(1) or
(2) of the Michigan penal code, 1931 PA 328, MCL 750.451, first and
second prostitution violations.
(iv) (v) A
violation of section 454 of the Michigan penal code,
1931 PA 328, MCL 750.454, leasing a house for purposes of
prostitution.
(vi) A violation of section 462 of the Michigan penal
code,
1931
PA 328, MCL 750.462, female under the age of 17 in a house of
prostitution.
(2) The DNA profiles of DNA samples received under this
section
act shall only be disclosed as follows:
(a) To a criminal justice agency for law enforcement
identification purposes.
(b) In a judicial proceeding as authorized or required by a
court.
(c) To a defendant in a criminal case if the DNA profile is
used in conjunction with a charge against the defendant.
(d) For an academic, research, statistical analysis, or
protocol developmental purpose only if personal identifications are
removed.
(3) Notwithstanding subsection (1), if at the time the
individual is arrested, convicted of, or found responsible for the
violation the investigating law enforcement agency or the
department
of state police already has a sample from the individual
that meets the requirements of this act, the individual is not
required
to provide another sample or pay the fee assessment
required under subsection (5).
(4) The county sheriff or the investigating law enforcement
agency as ordered by the court shall provide for collecting the
samples required to be provided under subsection (1) in a medically
approved manner by qualified persons using supplies provided by the
department
of state police and shall forward those samples and any
samples described in subsection (1) that were already in the
agency's
possession to the department of state police. after the
individual from whom the sample was taken has been arraigned in the
district court. However, the individual's DNA sample shall not be
forwarded to the department if the individual is not charged with
committing or attempting to commit a felony offense or an offense
that would be a felony if committed by an adult. If the
individual's DNA sample is forwarded to the department despite the
individual not having been charged as described in this subsection,
the law enforcement agency shall notify the department to destroy
that sample. The collecting and forwarding of samples shall be done
in the manner required under this act. A sample shall be collected
by the county sheriff or the investigating law enforcement agency
after
conviction or a finding of responsibility arrest but before
sentencing or disposition as ordered by the court and promptly
transmitted to the department of state police after the individual
is charged with committing or attempting to commit a felony offense
or an offense that would be a felony if committed by an adult. This
subsection does not preclude a law enforcement agency or state
agency from obtaining a sample at or after sentencing or
disposition. At the time a DNA sample is taken from an individual
under this section, the individual shall be notified in writing of
all of the following:
(a) That, except as otherwise provided by law, the
individual's DNA sample or DNA profile, or both, shall be destroyed
or expunged, as appropriate, if the charge for which the sample was
obtained has been dismissed or resulted in acquittal, or no charge
was filed within the limitations period.
(b) That the individual's DNA sample or profile, or both, will
not be destroyed or expunged, as appropriate, if the department
determines that the individual from whom the sample is taken is
otherwise obligated to submit a sample or if it is evidence
relating to another individual that would otherwise be retained
under this section.
(c) That the burden is on the arresting law enforcement agency
and the prosecution to request the destruction or expunction of a
DNA sample or profile as required under this section, not on the
individual.
(5)
Until October 1, 2003, the The
court shall order each
individual found responsible for or convicted of 1 or more crimes
listed in subsection (1) to pay an assessment of $60.00. The
assessment required under this subsection is in addition to any
fine, costs, or other assessments imposed by the court.
(6) An assessment required under subsection (5) shall be
ordered upon the record and shall be listed separately in the
adjudication order, judgment of sentence, or order of probation.
(7) After reviewing a verified petition by an individual
against whom an assessment is imposed under subsection (5), the
court may suspend payment of all or part of the assessment if it
determines the individual is unable to pay the assessment.
(8) The court that imposes the assessment prescribed under
subsection (5) may retain 10% of all assessments or portions of
assessments collected for costs incurred under this section and
shall transmit that money to its funding unit. On the last day of
each month, the clerk of the court shall transmit the assessments
or portions of assessments collected under this section as follows:
(a) Twenty-five percent to the county sheriff or other
investigating law enforcement agency that collected the DNA sample
as designated by the court to defray the costs of collecting DNA
samples.
(b)
Until October 1, 2003, 65% to the department of treasury
for
the department's forensic science division to defray the costs
associated
with the requirements of DNA profiling and DNA retention
prescribed
under this act.
(b) (c)
Beginning October 1, 2003, 65% Sixty-five
percent to
the state treasurer for deposit in the justice system fund created
in section 181 of the revised judicature act of 1961, 1961 PA 236,
MCL 600.181.
(9)
Beginning December 31, 2002, the The director of the
department shall report by December 31 of each year concerning the
rate of DNA sample collection, DNA identification profiling,
retention and compilation of DNA identification profiles, and the
collection of assessments required under subsection (5) to all of
the following:
(a) The standing committees of the senate and house of
representatives concerned with DNA sample collection and retention.
(b) The house of representatives appropriations subcommittee
on state police and military affairs.
(c) The senate appropriations subcommittee on state police.
(10) If a sample was collected under subsection (1) from an
individual who does not have more than 1 conviction, and that
conviction
was reversed by an appellate court, the individual may
petition
the sentencing court to shall order
the disposing disposal
of the sample collected and DNA identification profile record for
that conviction in the manner provided in subsections (13) and
(14).
The sentencing court shall only enter the order upon a
finding
that the individual has proven by clear and convincing
evidence
that the conviction was reversed based upon the great
weight
of the evidence, specifically, that there was overwhelming
evidence
against the verdict resulting in a miscarriage of justice.
(11) Any other DNA identification profile obtained by the
department shall not be permanently retained by the department but
shall be retained only as long as it is needed for a criminal
investigation or criminal prosecution. Except as provided in
subsection (12), the state police forensic laboratory shall dispose
of a DNA sample collected under subsection (1) or a DNA
identification profile, or both, if any of the following
circumstances occur:
(a) The department receives a written request for disposal
from the investigating police agency or prosecutor indicating that
the sample or profile is no longer necessary for a criminal
investigation or criminal prosecution.
(b) The department receives a written request for disposal and
a certified copy of a final court order establishing that the
charge for which the sample was obtained has been dismissed or has
resulted in an acquittal or that no charge was filed within the
applicable limitations period.
(12) Subsection (11) does not apply if either of the following
circumstances exists:
(a) The department determines that the individual from whom
the sample is taken has otherwise become obligated to submit a
sample.
(b) Subsection (16) applies.
(13) The state police forensic laboratory shall dispose of a
sample and a DNA identification profile record in the following
manner:
(a)
The Not more than 60 days
after the department receives
notice under subsection (11), the laboratory shall dispose of the
sample in compliance with section 13811 of the public health code,
1978 PA 368, MCL 333.13811.
(b) The laboratory shall dispose of the sample and the DNA
identification profile record in the presence of a witness.
(14) After disposal in accordance with subsection (13), the
laboratory shall make and keep a written record of the disposal,
signed by the individual who witnessed the disposal.
(15) An identification, warrant, detention, probable cause to
arrest, arrest, or conviction based upon a DNA match or DNA
information is not invalidated if it is later determined that 1 or
more of the following errors occurred in good faith:
(a) A DNA sample was erroneously obtained.
(b) A DNA identification profile was erroneously retained.
(c) A DNA sample was not disposed of or there was a delay in
disposing of the sample.
(d) A DNA identification profile was not disposed of or there
was a delay in disposing of the profile.
(16) Notwithstanding any other provision of this act, the
department is not required to dispose of physical evidence or data
obtained from a sample if evidence relating to an individual other
than the individual from whom the sample was taken would be
destroyed and the evidence or data relating to the other individual
would otherwise be retained under this section.
(17) The department shall send written notice to the
requesting law enforcement agency, court, or prosecutor when the
individual's DNA sample or profile has been destroyed under this
act.
Enacting section 1. This amendatory act takes effect July 1,
2015.
Enacting section 2. This amendatory act does not take effect
unless all of the following bills of the 97th Legislature are
enacted into law:
(a) Senate Bill No. 106.
(b) Senate Bill No. 107.