Hawaii-2014-SB2128-Amended

SECTION 1. Section 844D-126, Hawaii Revised Statutes, is amended to read as follows:

"[[]§844D-126[]] Retention of biological evidence. (a) All evidence in the custody or control of [~~a police department, prosecuting attorney, laboratory, or court that is~~] an agency shall be retained if the evidence:

(1) Is related to the investigation or prosecution of a case in which there has been a judgment of conviction for:

(A) Murder;

(B) Manslaughter;

(D) Robbery in the first degree;

(E) Sexual assault in the first degree;

(F) Sexual assault in the second degree;

(G) Assault in the first degree; or

(H) An attempt or criminal conspiracy to commit one of these offenses; and [~~that may contain~~]

(2) Contains biological evidence that could be used for DNA analysis [~~shall be retained at least until the later occurring of either:~~

~~(1)~~ ~~The exhaustion of all appeals of the case to which the evidence is related; or~~

~~(2)~~ ~~The completion of any sentence, including any term of probation or parole, imposed on the defendant in the case to which the evidence relates.~~] to reasonably do the following:

(A) Establish the identity of the person who committed the offense for which there was the judgment of conviction; or

(B) Exclude a person from the group of persons who could have committed the offense for which there was the judgment of conviction.

(b) [~~The attorney general shall establish procedures and protocols, which shall be uniform throughout the State, for the collection and preservation of evidence retained pursuant to this section.~~] An agency may dispose of evidence related to the investigation or prosecution of a case in which there has been a judgment of conviction for any felony other than those enumerated in subsection (a) if all of the following conditions are met:

(1) The agency files a notification of the proposed disposal of the evidence with the court;

(2) The filed notification is served upon:

(A) The defendant against whom the judgment of conviction was filed at the defendant's last known address;

(B) The defendant's attorney of record;

(D) The prosecuting attorney; and

(E) The defendant's parole officer or probation officer;

(3) The filed notification includes:

(A) A description of the evidence proposed to be disposed; and

(B) Notice that a defendant may file a statement of objection within one hundred eighty days of the date of receipt of the notification or within ninety days of the date of receipt of the notification if the defendant is serving a mandatory minimum sentence of imprisonment;

(4) If the defendant files a statement of objection pursuant to paragraph (3), the court schedules a hearing on the objection; and

(5) The court issues an order to allow the agency to dispose of the evidence pursuant to subsection (c).

(c) If, after a hearing required pursuant to subsection (b), the court determines by a preponderance of the evidence that:

(1) The identity of the defendant, as the perpetrator of the offense that resulted in the judgment of conviction, was at issue; and

(2) The evidence contains biological evidence that could be used for DNA analysis to reasonably establish the identity of the person who committed the offense for which the defendant was convicted, or exclude a person from the group of persons who could have committed the offense for which the defendant was convicted,

then the court may order the agency to retain the evidence at least until the later of either the exhaustion of all appeals of the case to which the evidence is related, or the completion of any sentence, including any term of probation or parole, imposed on the defendant in the case to which the evidence relates. If appropriate, the court may order that the agency may dispose of the evidence after taking reasonable measures to preserve the biological evidence contained on the evidence. If, after the hearing, the court is unable to make either of those findings, then the court may allow the agency to dispose of the evidence.

(d) As used in this section:

"Agency" means any custodial agency that retains evidence, including but not limited to the police department, prosecuting attorney, laboratory, or court.

"Biological evidence" means an individual's blood, semen, hair, saliva, skin tissue, fingernail scrapings, fingerprints, teeth, bone, bodily fluids, or other identified biological material including the contents of a sexual assault examination kit."

SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

THE SENATE	S.B. NO.	2128
TWENTY-SEVENTH LEGISLATURE, 2014		S.D. 1
STATE OF HAWAII		Proposed