SENATE BILL No. 1083

September 20, 2016, Introduced by Senator ZORN and referred to the Committee on Judiciary.

     A bill to amend 1990 PA 250, entitled

"DNA identification profiling system act,"

by amending section 6 (MCL 28.176), as amended by 2014 PA 457.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 6. (1) 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 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 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) A violation of section 335a(1) of the Michigan penal

code, 1931 PA 328, MCL 750.335a, indecent exposure.

     (iii) A violation punishable under section 451(1) or (2) of

the Michigan penal code, 1931 PA 328, MCL 750.451, first and second

prostitution violations.

     (iv) A violation of section 454 of the Michigan penal code,

1931 PA 328, MCL 750.454, leasing a house for purposes of

prostitution.

     (2) The DNA identification profiles of DNA samples received

under this 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

identification 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 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 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 and shall forward those samples and any samples

described in subsection (1) that were already in the agency's

possession to the department 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 investigating 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 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 identification 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 DNA identification

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 investigating law enforcement agency or the

prosecution may request the destruction or expunction of a DNA

sample or DNA identification profile, or both, but the burden is on

the arresting law enforcement agency and the prosecution individual

to request the destruction or expunction of a DNA sample or DNA

identification profile, as required under this section, not on the

individual.or both, if the investigating law enforcement agency or

prosecutor does not request the destruction or expunction of a DNA

sample or DNA identification profile, or both. The individual may

request the destruction or expunction of a DNA sample obtained

under subsection (1) or a DNA identification profile, or both, in

the following manner:

     (i) If the individual was charged with committing or

attempting to commit a felony offense or an offense that would be a

felony if committed by an adult and the charge for which the sample

was obtained or DNA identification profile was created has been

dismissed or resulted in acquittal, by filing a motion in the court

in which he or she was arraigned for destruction or expunction of

the DNA sample or profile, or both. The court shall grant a motion

filed under this subparagraph unless the DNA sample or DNA

identification profile, or both, are otherwise required to be

retained by law. If the court grants a motion made under this

subparagraph, the clerk of the court shall forward a certified copy

of the court's order to the prosecuting attorney, the investigating

law enforcement agency, and the department.

     (ii) If no charge was filed within the limitations period

against the individual, he or she may request the destruction or

expunction of the DNA sample or DNA identification profile, or

both, by submitting a written request to the investigating law

enforcement agency. Upon receipt of a request under this

subparagraph, the investigating law enforcement agency shall either

destroy a DNA sample collected under subsection (1) and that

remained in the investigating law enforcement agency's possession,

or submit the written request to the department if the sample has

already been forwarded to the department.

     (5) 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) 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) 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 sentencing court

shall order the disposal of the sample collected and DNA

identification profile record for that conviction in the manner

provided in subsections (13) and (14).

     (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 law enforcement 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.

     (c) The department receives a certified copy of a court order

granting an individual's motion to have his or her DNA sample or

DNA identification profile, or both, disposed of under subsection

(4)(c)(i).

     (d) The department receives a written request from a law

enforcement agency made to the law enforcement agency by an

individual under subsection (4)(c)(ii) whose sample was collected

under subsection (1) by the law enforcement agency but against whom

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) 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, individual, or prosecutor

when the individual's DNA sample or DNA identification profile has

been destroyed under this act.

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.