Bill Text: GA SB80 | 2011-2012 | Regular Session | Introduced

Georgia Senate Bill 80 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: Evidence; provide for DNA analysis of persons arrested for felony offenses

Spectrum: Partisan Bill (Republican 6-0)

Status: (Passed) 2011-05-11 - Effective Date [SB80 Detail]

Download: Georgia-2011-SB80-Introduced.html

11 SB80/AP

Senate Bill 80

By: Senators McKoon of the 29th, Bethel of the 54th, Cowsert of the 46th, Gooch of the 51st, Albers of the 56th and others

AS PASSED

A BILL TO BE ENTITLED
AN ACT

To amend Code Section 5-5-41, Code Section 17-5-56, and Chapter 4 of Title 24 of the Official Code of Georgia Annotated, relating to requirements as to extraordinary motions for new trial generally, maintenance of physical evidence containing biological material, and proof generally, respectively, so as to provide for matters relative to the collection of DNA; to provide for a short title; to transfer provisions relating to DNA analysis upon conviction of certain sex offenses to a new article of Chapter 3 of Title 35 of the Official Code of Georgia Annotated, relating to the Georgia Bureau of Investigation; to expand the types of convicted felons who shall have a DNA sample collected and maintained in the DNA data bank from certain designated sex offender felons to all convicted felons who are incarcerated or on probation or parole; to amend Chapter 3 of Title 35 of the Official Code of Georgia Annotated, relating to the Georgia Bureau of Investigation, so as to expand the types of convicted felons who shall have a DNA sample collected and maintained in the DNA data bank from certain designated sex offender felons to all convicted felons who are incarcerated or on probation or parole; to provide for related matters; to provide for an effective date and a contingent effective date; to provide for automatic repeal under certain circumstances; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

PART 1
SECTION 1-1.

This Act shall be known and may be cited as the "Johnia Berry Act."

SECTION 1-2.

Code Section 5-5-41 of the Official Code of Georgia Annotated, relating to requirements as to extraordinary motions for new trial generally, is amended by revising paragraph (1) of subsection (c), as follows:

"(c)(1) Subject to the provisions of subsections (a) and (b) of this Code section, a person convicted of a serious violent felony as defined in Code Section 17-10-6.1 may file a written motion before the trial court that entered the judgment of conviction in his or her case, for the performance of forensic deoxyribonucleic acid (DNA) testing."

SECTION 1-3.

Code Section 17-5-56 of the Official Code of Georgia Annotated, relating to maintenance of physical evidence containing biological material, is amended by revising subsection (b) as follows:

"(b) In a case in which the death penalty is imposed, the evidence shall be maintained until the sentence in the case has been carried out. In a case that involves the prosecution of a serious violent felony as defined by Code Section 17-10-6.1, a violation of Code Section 16-6-5.1, or sodomy, statutory rape, child molestation, bestiality, incest, or sexual battery as those terms are defined in Chapter 6 of Title 16, the evidence Evidence in all felony cases that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetrator of the crime shall be maintained for ten years after judgment in the criminal case becomes final or ten years after May 27, 2003, whichever is later. Evidence in all other felony and misdemeanor cases may be purged the period of time that the crime remains unsolved or until the sentence in the case is completed, whichever occurs last."

PART II
SECTION 2-1.

Chapter 4 of Title 24 of the Official Code of Georgia Annotated, relating to proof generally, is amended by redesignating Article 4 as Article 6A of Chapter 3 of Title 35 and by revising said article, relating to DNA analysis upon conviction of certain sex offenses, as follows:

"ARTICLE 4
ARTICLE 6A

24-4-60 35-3-160.

(a) As used in subsection (b) of this Code section article, the term:

(1) 'Department' means the Department of Corrections.

(2) 'Division' means the Division of Forensic Sciences of the Georgia Bureau of Investigation.

(3) 'Detention facility' 'state correctional facility' means a penal institution under the jurisdiction of the Department of Corrections department used for the detention of persons convicted of a felony, including penal institutions operated by a private company on behalf of the department, inmate work camps, and inmate boot camps; provided, however, that such term shall not include a, probation detention center, probation diversion center, or probation boot camp under the jurisdiction of the Department of Corrections centers, and parole revocation centers. Such term shall also mean any facility operated under the jurisdiction of a sheriff used for the detention of persons convicted of a felony including a county jail or county correctional facility.

(b) Any person convicted of a criminal offense defined in Code Section 16-6-1, relating to the offense of rape; Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy; Code Section 16-6-3, relating to the offense of statutory rape; Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes; Code Section 16-6-5.1, relating to the offense of sexual assault against persons in custody, sexual assault against a person detained or a patient in a hospital or other institution, or sexual assault by a practitioner of psychotherapy against a patient; Code Section 16-6-6, relating to the offense of bestiality; Code Section 16-6-7, relating to the offense of necrophilia; or Code Section 16-6-22, relating to the offense of incest, shall have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. In addition, on and after July 1, 2000, any person convicted of a felony and incarcerated in a state correctional facility felony offense who is held in a detention facility or placed on probation shall at the time of entering the prison system detention facility or being placed on probation have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony prior to July 1, 2000 2011, and who currently is incarcerated in a state correctional detention facility in this state, serving a probation sentence, or serving under the jurisdiction of the Board of Pardons and Paroles for such offense. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony in this state on or after July 1, 2000, and who is incarcerated in a private correctional facility in this state for such offense pursuant to a contract with the Department of Corrections upon entering the facility, and for any person convicted of a felony prior to July 1, 2000, and who is incarcerated in a private correctional facility in this state pursuant to contract with the Department of Corrections. It shall be the responsibility of the detention facility detaining or entity supervising a convicted felon to collect the samples required by this Code section and forward the sample to the division unless such sample has already been collected by the department or another agency or entity.

(c) The analysis shall be performed by the Division of Forensic Sciences of the Georgia Bureau of Investigation division. The division shall be authorized to contract with individuals or organizations for services to perform such analysis. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 24-4-63 35-3-163.

(c)(1) On and after July 1, 2007, any person who is placed on probation shall have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person if such person is convicted of a felony violation of any of the following:

(A) Chapter 5 of Title 16, relating to crimes against persons;

(B) Code Section 16-6-1, relating to the offense of rape;

(D) Code Section 16-6-3, relating to the offense of statutory rape;

(E) Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation;

(F) Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes;

(G) Code Section 16-6-5.1, relating to the offense of sexual assault against persons in custody, sexual assault against a person detained or a patient in a hospital or other institution, or sexual assault by a practitioner of psychotherapy against a patient;

(H) Code Section 16-6-6, relating to the offense of bestiality;

(I) Code Section 16-6-7, relating to the offense of necrophilia;

(J) Code Section 16-6-22, relating to the offense of incest;

(K) Code Section 16-7-1, relating to the offense of burglary;

(L) Code Section 16-8-40, relating to the offense of robbery;

(M) Code Section 16-8-41, relating to the offense of armed robbery;

(N) Code Section 16-10-23, relating to the offense of impersonating an officer;

(O) Code Section 16-10-24, relating to the offense of obstruction of an officer;

(P) Article 4 of Chapter 11 of Title 16, relating to dangerous instrumentalities and practices; and

(Q) Chapter 13 of Title 16, relating to controlled substances.

(2) The analysis shall be performed by the Division of Forensic Sciences of the Georgia Bureau of Investigation. The division shall be authorized to contract with individuals or organizations for services to perform such analysis. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 24-4-63. The Department of Corrections shall be responsible for collecting such sample.

24-4-61 35-3-161.

(a) Each sample required pursuant to Code Section 24-4-60 35-3-160 from persons who are to be incarcerated shall be withdrawn within the first 30 days of incarceration at the receiving unit of the detention facility or at such other place as is designated by the Department of Corrections department. Each sample required pursuant to Code Section 24-4-60 35-3-160 from persons who are to be released from a state correctional facility or private correctional detention facility shall be withdrawn within the 12 months preceding such person's release at a place designated by the Department of Corrections department. The required samples from persons who are not sentenced to a term of confinement shall be withdrawn as a condition of probation. The Division of Forensic Sciences of the Georgia Bureau of Investigation division shall publish in its quality manuals the procedures for the collection and transfer of samples to such division pursuant to Code Section 35-3-154. Personnel at a Department of Corrections detention facility shall implement the provisions of this Code section as part of the regular processing of offenders.

(b) Samples collected by oral swab or by a noninvasive procedure may be collected by any individual who has been trained in the procedure. Only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, graduate laboratory technician, or phlebotomist shall withdraw any sample of blood to be submitted for analysis. No civil liability shall attach to any person authorized to take a sample as provided in this article as a result of the act of taking a sample from any person submitting thereto, provided the sample was taken according to recognized medically accepted procedures. However, no person shall be relieved from liability for negligence in the withdrawing of any blood sample.

(c) Chemically clean sterile disposable needles shall be used for the withdrawal of all samples of blood. The containers for blood samples, oral swabs, and the samples obtained by noninvasive procedures shall be sealed and labeled with the subject's name, social security number, date of birth, race, and gender plus the name of the person collecting the sample and the date and place of collection. The containers shall be secured to prevent tampering with the contents. The steps set forth in this subsection relating to the taking, handling, identification, and disposition of samples are procedural and not substantive. Substantial compliance therewith shall be deemed to be sufficient. The samples shall be transported to the Division of Forensic Sciences of the Georgia Bureau of Investigation division not more than 15 days following withdrawal and shall be analyzed and stored in the DNA data bank in accordance with Code Sections 24-4-62 35-3-162 and 24-4-63 35-3-163.

24-4-62 35-3-162.

Whether or not the results of an analysis are to be included in the data bank, the bureau shall conduct the DNA analysis in accordance with procedures adopted by the bureau to determine identification characteristics specific to the individual whose sample is being analyzed. The director of the Georgia Bureau of Investigation or his or her designated representative shall complete and maintain on file a form indicating the name of the person whose sample is to be analyzed, the date and by whom the sample was received and examined, and a statement that the seal on the container containing the sample had not been broken or otherwise tampered with. The remainder of a sample submitted for analysis and inclusion in the data bank pursuant to Code Section 24-4-60 35-3-160 may be divided, if possible, labeled as provided for the original sample, and securely stored by the bureau in accordance with specific procedures of the bureau to ensure the integrity and confidentiality of the samples. All or part of the remainder of that sample may be used only to create a statistical data base provided no identifying information on the individual whose sample is being analyzed is included or for retesting by the bureau to validate or update the original analysis. A report of the results of a DNA analysis conducted by the bureau as authorized, including the identifying information, shall be made and maintained at the bureau. Except as specifically provided in this Code section and Code Section 24-4-63 35-3-163, the results of the analysis shall be securely stored and shall remain confidential.

24-4-63 35-3-163.

(a) It shall be the duty of the bureau to receive samples and to analyze, classify, and file the results of DNA identification characteristics of samples submitted pursuant to Code Section 24-4-60 35-3-160 and to make such information available as provided in this Code section. The results of an analysis and comparison of the identification of the characteristics from two or more biological samples shall be made available directly to federal, state, and local law enforcement officers upon a request made in furtherance of an official investigation of any criminal offense. A request may be made by personal contact, mail, or electronic means. The name of the requestor and the purpose for which the information is requested shall be maintained on file with the bureau.

(b) Upon request from a prosecutor or law enforcement agency, the bureau may compare a DNA profile from an analysis of a sample from a suspect in a criminal investigation where the sample was obtained through a search warrant, consent of the suspect, court order, or other lawful means to DNA profiles lawfully collected and maintained by the bureau. The bureau shall not add a DNA profile of any such suspect to any DNA data bank except upon conviction as provided in this article.

(c)(1) Upon his or her request, a copy of the request for search shall be furnished to any person identified and charged with an offense as the result of a search of information in the data bank. Only when a sample or DNA profile supplied by the requestor satisfactorily matches the requestor's profile in the data bank shall the existence of data in the data bank be confirmed or identifying information from the data bank be disseminated.

(2) The name of the convicted offender felon whose profile is contained in the data bank may be related to any other data bases which are constructed for law enforcement purposes and may be disseminated only for law enforcement purposes.

(3) Upon a showing by the defendant accused in a criminal case proceeding that access to the DNA data bank is material to the investigation, preparation, or presentation of a defense at trial or in a motion for a new trial postconviction proceeding, a superior court having proper jurisdiction over such criminal case proceeding shall direct the bureau to compare a DNA profile which has been generated by the defendant accused through an independent test against the data bank, provided that such DNA profile has been generated in accordance with standards for forensic DNA analysis adopted pursuant to 42 U.S.C. Section 14131, as amended.

(d) The bureau shall develop procedures governing the methods of obtaining information from the data bank in accordance with this Code section and procedures for verification of the identity and authority of the requestor. The bureau shall specify the positions in that agency which require regular access to the data bank and samples submitted as a necessary function of the job.

(e) The bureau may create a separate statistical data base comprised of DNA profiles of samples of persons whose identity is unknown. Nothing in this Code section or Code Section 24-4-64 35-3-164 shall prohibit the bureau from sharing or otherwise disseminating the information in the statistical data base with law enforcement or criminal justice agencies within or outside the state.

(f) The bureau may charge a reasonable fee to search and provide a comparative analysis of DNA profiles in the data bank to any authorized law enforcement agency outside of the this state.

24-4-64 35-3-164.

(a) Any person who, without authority, disseminates information contained in the data bank shall be guilty of a misdemeanor. Any person who disseminates, receives, or otherwise uses or attempts to so use information in the data bank, knowing that such dissemination, receipt, or use is for a purpose other than as authorized by law, shall be guilty of a misdemeanor of a high and aggravated nature.

(b) Except for purposes of law enforcement or as authorized by law this article, any person who, for purposes of having DNA analysis performed, obtains or attempts to obtain any sample submitted to the Division of Forensic Sciences division for analysis shall be guilty of a felony.

24-4-65 35-3-165.

(a) A person whose DNA profile has been included in the data bank pursuant to this article may request that it be expunged on the grounds that the conviction on which the authority for including his or her DNA profile was based has been reversed and the case dismissed. The bureau shall purge all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person upon receipt of a written request that such data be expunged, pursuant to this Code section, and a certified copy of the court order reversing and dismissing the conviction.

(b) A DNA sample obtained in good faith shall be deemed to have been obtained in accordance with the requirements of this article and its use in accordance with this article is authorized until a court order directing expungement is obtained and submitted to the bureau."

PART III
SECTION 3-1.

Chapter 3 of Title 35 of the Official Code of Georgia Annotated, relating to the Georgia Bureau of Investigation, is amended by repealing Article 6A as enacted by HB 24, substantially revising, superseding, and modernizing provisions relating to evidence during the 2011-2012 biennium of the General Assembly, and enacting a new article to read as follows:

"ARTICLE 6A

35-3-160.

(a) As used in this article, the term:

(1) 'Department' means the Department of Corrections.

(2) 'Division' means the Division of Forensic Sciences of the Georgia Bureau of Investigation.

(3) 'Detention facility' means a penal institution under the jurisdiction of the department used for the detention of persons convicted of a felony, including penal institutions operated by a private company on behalf of the department, inmate work camps, inmate boot camps, probation detention centers, and parole revocation centers. Such term shall also mean any facility operated under the jurisdiction of a sheriff used for the detention of persons convicted of a felony including a county jail or county correctional facility.

(b) Any person convicted of a felony offense who is held in a detention facility or placed on probation shall at the time of entering the detention facility or being placed on probation have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony prior to July 1, 2011, and who currently is incarcerated in a detention facility, serving a probation sentence, or serving under the jurisdiction of the Board of Pardons and Paroles for such offense. It shall be the responsibility of the detention facility detaining or entity supervising a convicted felon to collect the samples required by this Code section and forward the sample to the division unless such sample has already been collected by the department or another agency or entity.

(c) The analysis shall be performed by the division. The division shall be authorized to contract with individuals or organizations for services to perform such analysis. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 35-3-163.

35-3-161.

(a) Each sample required pursuant to Code Section 35-3-160 from persons who are to be incarcerated shall be withdrawn within the first 30 days of incarceration at the receiving unit of the detention facility or at such other place as is designated by the department. Each sample required pursuant to Code Section 35-3-160 from persons who are to be released from a detention facility shall be withdrawn within the 12 months preceding such person's release at a place designated by the department. The required samples from persons who are not sentenced to a term of confinement shall be withdrawn as a condition of probation. The division shall publish in its quality manuals the procedures for the collection and transfer of samples to such division pursuant to Code Section 35-3-154. Personnel at a detention facility shall implement the provisions of this Code section as part of the regular processing of offenders.

(c) Chemically clean sterile disposable needles shall be used for the withdrawal of all samples of blood. The containers for blood samples, oral swabs, and the samples obtained by noninvasive procedures shall be sealed and labeled with the subject's name, social security number, date of birth, race, and gender plus the name of the person collecting the sample and the date and place of collection. The containers shall be secured to prevent tampering with the contents. The steps set forth in this subsection relating to the taking, handling, identification, and disposition of samples are procedural and not substantive. Substantial compliance therewith shall be deemed to be sufficient. The samples shall be transported to the division not more than 15 days following withdrawal and shall be analyzed and stored in the DNA data bank in accordance with Code Sections 35-3-162 and 35-3-163.

35-3-162.

Whether or not the results of an analysis are to be included in the data bank, the bureau shall conduct the DNA analysis in accordance with procedures adopted by the bureau to determine identification characteristics specific to the individual whose sample is being analyzed. The director or his or her designated representative shall complete and maintain on file a form indicating the name of the person whose sample is to be analyzed, the date and by whom the sample was received and examined, and a statement that the seal on the container containing the sample had not been broken or otherwise tampered with. The remainder of a sample submitted for analysis and inclusion in the data bank pursuant to Code Section 35-3-160 may be divided, if possible, labeled as provided for the original sample, and securely stored by the bureau in accordance with specific procedures of the bureau to ensure the integrity and confidentiality of the samples. All or part of the remainder of that sample may be used only to create a statistical data base provided no identifying information on the individual whose sample is being analyzed is included or for retesting by the bureau to validate or update the original analysis. A report of the results of a DNA analysis conducted by the bureau as authorized, including the identifying information, shall be made and maintained at the bureau. Except as specifically provided in this Code section and Code Section 35-3-163, the results of the analysis shall be securely stored and shall remain confidential.

35-3-163.

(a) It shall be the duty of the bureau to receive samples and to analyze, classify, and file the results of DNA identification characteristics of samples submitted pursuant to Code Section 35-3-160 and to make such information available as provided in this Code section. The results of an analysis and comparison of the identification of the characteristics from two or more biological samples shall be made available directly to federal, state, and local law enforcement officers upon a request made in furtherance of an official investigation of any criminal offense. A request may be made by personal contact, mail, or electronic means. The name of the requestor and the purpose for which the information is requested shall be maintained on file with the bureau.

(2) The name of the convicted felon whose profile is contained in the data bank may be related to any other data bases which are constructed for law enforcement purposes and may be disseminated only for law enforcement purposes.

(3) Upon a showing by the accused in a criminal proceeding that access to the DNA data bank is material to the investigation, preparation, or presentation of a defense at trial or in a postconviction proceeding, a superior court having proper jurisdiction over such criminal proceeding shall direct the bureau to compare a DNA profile which has been generated by the accused through an independent test against the data bank, provided that such DNA profile has been generated in accordance with standards for forensic DNA analysis adopted pursuant to 42 U.S.C. Section 14131.

(e) The bureau may create a separate statistical data base comprised of DNA profiles of samples of persons whose identity is unknown. Nothing in this Code section or Code Section 35-3-164 shall prohibit the bureau from sharing or otherwise disseminating the information in the statistical data base with law enforcement or criminal justice agencies within or outside the state.

(f) The bureau may charge a reasonable fee to search and provide a comparative analysis of DNA profiles in the data bank to any authorized law enforcement agency outside of this state.

35-3-164.

(b) Except for purposes of law enforcement or as authorized by this article, any person who, for purposes of having DNA analysis performed, obtains or attempts to obtain any sample submitted to the division for analysis shall be guilty of a felony.

35-3-165.

PART IV
SECTION 4-1.

(a) Parts I, II, and IV of this Act shall become effective upon its approval by the Governor or upon its becoming law without such approval, except as otherwise provided by subsection (b) of this section.

(b)(1) Part III of this Act shall become effective only if HB 24, substantially revising, superseding, and modernizing provisions relating to evidence, is enacted during the 2011-2012 biennium of the General Assembly and becomes law on or before January 1, 2013, in which case Part III of this Act shall become effective on the same date that said HB 24 becomes effective.

(2) Part II of this Act shall stand repealed if and when Part III of this Act becomes effective as provided by paragraph (1) of this subsection.

(3) If said HB 24 does not become law on or before January 1, 2013, as provided by paragraph (1) of this subsection, then Part III of this Act shall stand repealed on January 1, 2013.

SECTION 4-2.

All laws and parts of laws in conflict with this Act are repealed.