January 29, 2013, Introduced by Senators SCHUITMAKER and JONES and referred to the Committee on Judiciary.
A bill to amend 1990 PA 250, entitled
"DNA identification profiling system act,"
by amending the title and sections 2, 3, 3a, and 6 (MCL 28.172,
28.173, 28.173a, and 28.176), the title and section 3 as amended by
1998 PA 522, sections 2 and 6 as amended by 2008 PA 535, and
section 3a as amended by 2008 PA 533.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
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, certain
prisoners, convicted offenders, and juvenile offenders and the
analysis of those samples; and to prescribe the powers and duties
of certain state departments and county agencies.
Sec. 2. As used in this act:
(a) "Department" means the department of state police.
(b) "DNA identification profile" or "profile" means the
results of the DNA identification profiling of a sample, including
a paper, electronic, or digital record.
(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.
(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
(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
(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
(ii) Law enforcement agencies from certain convicted offenders
under section 520m of the Michigan penal code, 1931 PA 328, MCL
or certain juveniles under section 18k of chapter XIIA of
probate code of 1939, 1939 PA 288, MCL
., or certain
individuals charged with committing or attempting to commit a
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
(b) Distributing blood specimen vials, mailing tubes, and
labels 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 charged with
committing or attempting to commit a felony offense or is convicted
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.
The Except as
provided in subsection (11), 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 arrested for committing or attempting to
commit a felony offense.
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.
The individual is convicted of a felony
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.
(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.
(iii) A violation of section 335a of the Michigan penal code,
1931 PA 328, MCL 750.335a, indecent exposure.
(iv) A violation of section 451 of the Michigan penal code,
1931 PA 328, MCL 750.451, first and second prostitution violations.
(v) A violation of section 454 of the Michigan penal code,
1931 PA 328, MCL 750.454, leasing a house for purposes of
(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
(2) The DNA profiles of DNA samples received under this
section shall only be disclosed as follows:
(a) To a criminal justice agency for law enforcement
(b) In a judicial proceeding as authorized or required by a
(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
(3) Notwithstanding subsection (1), if at the time the
individual is arrested for, 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 required under
(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. 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
or a finding of responsibility arrest
sentencing or disposition as ordered by the court and promptly
transmitted to the department of state police. This subsection does
not preclude a law enforcement agency or state agency from
obtaining a sample at or after sentencing or disposition.
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
Until October 1, 2003, 65% Sixty-five
percent 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.
Beginning October 1, 2003, 65% 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.
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
(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 order the disposing 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
(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
(a) The department determines that the individual from whom
the sample is taken has otherwise become obligated to submit a
(b) Subsection (16) applies.
(13) The state police forensic laboratory shall dispose of a
sample and a DNA identification profile record in the following
(a) The laboratory shall dispose of the sample in compliance
with section 13811 of the public health code, 1978 PA 368, MCL
(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.