SENATE BILL No. 105

 

 

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:

 

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, 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

 

felony.

 

     (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.

 

     (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

 

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., or certain

 

individuals charged with committing or attempting to commit a

 

felony offense.

 

     (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 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.

 

     Sec. 6. (1) 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.

 

     (b) (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.

 

     (c) (b) The individual is convicted of 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.

 

     (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

 

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 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 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

 

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. 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. This subsection does

 

not preclude a law enforcement agency or state agency from

 

obtaining a sample at or after sentencing or disposition.

 

     (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% 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.

 

     (c) 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.

 

     (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 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

 

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 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.