Bill Text: OR SB731 | 2011 | Regular Session | Enrolled
Bill Title: Relating to deoxyribonucleic acid; and declaring an emergency.
Spectrum: Committee Bill
Status: (Passed) 2011-06-07 - Effective date, June 7, 2011. [SB731 Detail]
Download: Oregon-2011-SB731-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
Enrolled
Senate Bill 731
Sponsored by COMMITTEE ON JUDICIARY
CHAPTER ................
AN ACT
Relating to deoxyribonucleic acid; creating new provisions;
amending section 1, chapter 489, Oregon Laws 2009; repealing
sections 2 and 3, chapter 489, Oregon Laws 2009; and declaring
an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. Section 1, chapter 489, Oregon Laws 2009, is amended
to read:
{ + Sec. 1. + } (1) { - Except as provided in subsection
(3) of this section, - } A custodian shall preserve biological
evidence { + in accordance with sections 2 to 6 of this 2011 Act
if the evidence + }:
(a) { - That - } Is collected as part of a criminal
investigation into a covered offense; or
(b) { - (A) That - } { + Is otherwise in the possession of
the custodian and + } reasonably may be used to incriminate or
exculpate any person for a covered offense { - ; and - }
{ - (B) That is in the possession of the custodian before any
person is convicted of a covered offense - } .
(2) { - A custodian shall preserve biological evidence
described in - } { + When a custodian is required to preserve
biological evidence under + } subsection (1) of this
section { + , the custodian shall preserve the evidence + }in an
amount and manner that is sufficient to develop a DNA
profile. { + Except as otherwise provided in sections 2 to 6 of
this 2011 Act, the biological evidence must be preserved:
(a) If the covered offense is aggravated murder, murder, rape
in the first degree, sodomy in the first degree or unlawful
sexual penetration in the first degree, for 60 years from the
date each person is convicted of the offense or until each person
convicted of the offense has died, whichever is earlier.
(b) If the covered offense is aggravated vehicular homicide,
manslaughter in the first degree or manslaughter in the second
degree, until each person convicted of the offense has served the
person's sentence.
(c) If no person is convicted of the covered offense or the law
enforcement agency investigating the covered offense closes the
case for a reason other than the conviction of a person, until
the expiration of the statute of limitations. + }
(3) A custodian is not required to preserve physical evidence
solely because the physical evidence contains biological evidence
if the physical evidence is of such a size, bulk or physical
character as to render retention impracticable. When the
Enrolled Senate Bill 731 (SB 731-A) Page 1
retention of physical evidence is impracticable, the custodian
shall remove and preserve portions of the physical evidence
likely to contain biological evidence in a quantity sufficient to
permit future DNA testing before returning or disposing of the
physical evidence.
{ - (4) As used in this section: - }
{ - (a) 'Biological evidence' means a sample of an
individual's blood, semen, hair, saliva, skin tissue, fingernail
scrapings, bone, bodily fluids or other identifiable biological
material or an item that contains such material, whether the
material or item is stored or cataloged separately or the
material is present upon other evidence. 'Biological evidence'
includes the contents of a sexual assault forensic evidence
kit. - }
{ - (b) 'Convicted' includes a finding of guilty or
responsible except for insanity, or a finding that a person is
within the jurisdiction of the juvenile court under ORS
419C.005. - }
{ - (c) 'Covered offense' means: - }
{ - (A) Aggravated murder; - }
{ - (B) Murder; - }
{ - (C) Manslaughter in the first or second degree; - }
{ - (D) Criminally negligent homicide; - }
{ - (E) Aggravated vehicular homicide; or - }
{ - (F) A sex crime listed in ORS 181.594. - }
{ - (d) 'Custodian' means a law enforcement agency as defined
in ORS 131.550 or any other person or public body as defined in
ORS 174.109 that is charged with the collection, storage or
retrieval of biological evidence in connection with a criminal
investigation or criminal prosecution. 'Custodian' does not
include a court. - }
{ - (e) 'DNA' means deoxyribonucleic acid. - }
{ - (f) 'DNA profile' means the unique identifier of an
individual that is derived from DNA. - }
{ + (4) Upon the conclusion of any trial or hearing involving
a covered offense, the court shall return any biological evidence
in the possession of the court to the custodian responsible for
preserving the biological evidence under sections 2 to 6 of this
2011 Act, unless the evidence was collected by the defense. If
the evidence was collected by the defense, the court shall return
the evidence to the attorney for the defendant.
(5) If a custodian is required to preserve biological evidence
under sections 2 to 6 of this 2011 Act and the custodian is
unable to produce the evidence in a judicial proceeding, the
individual to whom the custodian has delegated the duty to
preserve the evidence shall prepare, sign and file with the court
a sworn affidavit that indicates that the custodian is unable to
produce the evidence and describes the efforts taken to locate
the evidence.
(6) If a court finds that biological evidence was destroyed in
violation of sections 2 to 6 of this 2011 Act, the court, after
determining whether the evidence was destroyed maliciously, may
impose appropriate sanctions and order appropriate remedies. The
court may not order the reversal of a conviction under this
subsection on the sole grounds that the biological evidence is no
longer available.
(7)(a) The Attorney General shall adopt rules establishing:
(A) Standards for the proper collection, retention,
preservation and cataloging of biological evidence applicable to
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criminal investigations into, and criminal prosecutions for,
covered offenses; and
(B) A standard form for use by custodians in providing the
written notice described in section 3 (1) of this 2011 Act.
(b) The Attorney General shall consult with the Department of
State Police and custodians before adopting rules under this
subsection. + }
SECTION 2. { + As used in sections 2 to 6 of this 2011 Act:
(1) 'Biological evidence' means an individual's blood, semen,
hair, saliva, skin tissue, fingernail scrapings, bone, bodily
fluids or other identified biological material. ' Biological
evidence' includes the contents of a sexual assault forensic
evidence kit.
(2) 'Convicted' includes a finding of guilty or responsible
except for insanity and a finding that a person is within the
jurisdiction of the juvenile court under ORS 419C.005.
(3) 'Covered offense' means:
(a) Aggravated murder under ORS 163.095;
(b) Murder under ORS 163.115;
(c) Manslaughter in the first degree under ORS 163.118;
(d) Manslaughter in the second degree under ORS 163.125;
(e) Aggravated vehicular homicide under ORS 163.149;
(f) Rape in the first degree under ORS 163.375;
(g) Sodomy in the first degree under ORS 163.405; or
(h) Unlawful sexual penetration in the first degree under ORS
163.411.
(4) 'Custodian' means a law enforcement agency as defined in
ORS 131.550, or any other person or public body as defined in ORS
174.109, that is charged with the collection, preservation or
retrieval of evidence in connection with a criminal investigation
or criminal prosecution. 'Custodian' does not include a court.
(5) 'DNA' means deoxyribonucleic acid.
(6) 'DNA profile' means the unique identifier of an individual
that is derived from DNA.
(7) 'Sentence' means a term of incarceration in a correctional
or juvenile detention facility, a period of probation, parole or
post-prison supervision and the period of time during which a
person is under the jurisdiction of the Psychiatric Security
Review Board.
(8) 'Supervisory authority' has the meaning given that term in
ORS 144.087.
(9) 'Victim' has the meaning given that term in ORS
131.007. + }
SECTION 3. { + (1)(a) A custodian may seek to dispose of
biological evidence before the period of time specified in
section 1 (2), chapter 489, Oregon Laws 2009, by providing
written notice, in the form developed under section 1 (7),
chapter 489, Oregon Laws 2009, to the district attorney having
jurisdiction over the prosecution of the covered offense. Upon
receipt of the notice, the district attorney shall determine
whether to object to the disposal of any of the biological
evidence identified in the custodian's notice.
(b) If the district attorney objects to the disposal of any of
the biological evidence identified in the custodian's notice, the
district attorney shall provide written notice of the objection
to the custodian that identifies the biological evidence that the
district attorney determines must be preserved. The custodian
shall preserve any biological evidence identified by the district
attorney in the notice until the period of time specified in
section 1 (2), chapter 489, Oregon Laws 2009, has elapsed.
Enrolled Senate Bill 731 (SB 731-A) Page 3
(c) If the district attorney does not object to the disposal of
all or a portion of the biological evidence identified in the
custodian's notice, the district attorney shall provide written
notice of the intent to dispose of biological evidence,
identifying the biological evidence that the district attorney
has determined may be disposed of, to:
(A) The defendant;
(B) The most recent attorney of record for the defendant; and
(C) The Department of Justice.
(2) If evidence that is subject to section 1, chapter 489,
Oregon Laws 2009, is the property of the victim, the victim may
request that the district attorney determine whether the property
may be returned to the victim. The request must be in writing and
must identify the property that the victim seeks to have
returned. If the district attorney:
(a) Objects to the return of any of the property to the victim,
the district attorney shall notify the victim of that
determination.
(b) Does not object to the return of all or a portion of the
property, the district attorney shall provide written notice of
the intent to dispose of biological evidence, identifying the
property the district attorney has determined may be returned,
to:
(A) The victim;
(B) The defendant;
(C) The most recent attorney of record for the defendant; and
(D) The Department of Justice.
(3)(a) Not later than 120 days after the date the district
attorney provides written notice to the defendant under
subsection (1)(c) or (2)(b) of this section, the defendant may
file a motion to preserve biological evidence in the convicting
court. The defendant shall provide a copy of the motion to the
district attorney and the custodian. If the motion is timely
filed, the court shall enter an order as provided in section 4 of
this 2011 Act.
(b) If the defendant fails to file a motion to preserve
biological evidence before the expiration of the 120-day period
specified in paragraph (a) of this subsection, the district
attorney shall file with the court a copy of the notice of intent
to dispose of biological evidence sent to the defendant under
subsection (1)(c) or (2)(b) of this section. Following the filing
of the notice, the court shall, without hearing, enter an order
authorizing the disposal of the biological evidence described in
the notice. The court shall provide a copy of the order to the
custodian, the district attorney and each person or entity
described in subsection (1)(c) or (2)(b) of this section, as
applicable.
(c) The 120-day period specified in this subsection begins on
the date the notice is mailed. + }
SECTION 4. { + (1) Upon receipt of a timely motion to preserve
biological evidence under section 3 (3) of this 2011 Act, the
court shall:
(a) Conduct a hearing to resolve the motion; or
(b) Enter an order directing the custodian to preserve the
biological evidence.
(2)(a) In determining whether to order the preservation of
biological evidence, the court shall consider, in addition to
other factors the court considers appropriate, the following
factors:
Enrolled Senate Bill 731 (SB 731-A) Page 4
(A) Whether the identification of the offender was a disputed
issue;
(B) Whether other biological evidence in the case contains DNA
in an amount that is sufficient to develop a DNA profile and will
not be disposed of;
(C) If the biological evidence has not previously been tested,
whether it is possible to perform testing on the biological
evidence;
(D) Whether the defendant has served all of the sentence
imposed; and
(E) Whether the defendant has exhausted the defendant's
appellate or post-conviction rights.
(b) If the defendant has not exhausted the defendant's
appellate and post-conviction rights, there is a presumption that
the biological evidence should be preserved.
(c) In making the determination described in this subsection,
except as otherwise provided in paragraph (b) of this subsection,
the court may assign the weight the court deems appropriate to
the factors described in paragraph (a) of this subsection and to
any other factor the court determines is appropriate.
(d) For purposes of subparagraph (2)(a)(A) of this section, the
court need not presume that identification of the offender is not
a disputed issue solely because the defendant has pleaded guilty
or no contest to the crime, has confessed to the crime or has
made an admission.
(3) If the court enters an order authorizing the disposal of
biological evidence, the order may not authorize disposal to
occur sooner than 45 days after the date the order is entered.
The court shall provide a copy of the order to the custodian, the
district attorney and the defendant.
(4) Either the state or the defendant may appeal from an order
entered under this section in the manner provided in ORS chapter
19 for appeals from judgments. Notwithstanding ORS 19.330, the
filing of a notice of appeal automatically stays an order entered
under this section. + }
SECTION 5. { + (1) Upon written request by the defendant, the
district attorney shall provide the defendant with an inventory
of biological evidence that has been preserved under sections 2
to 6 of this 2011 Act and is related to the covered offense for
which the defendant was convicted.
(2) A defendant or, if the defendant is represented by an
attorney, the defendant's attorney has the right to reasonably
review biological evidence that is the subject of a written
notice of intent to dispose of biological evidence under section
3 of this 2011 Act for the purpose of preparing a motion to
preserve biological evidence. + }
SECTION 6. { + When a provision of sections 2 to 6 of this
2011 Act requires a district attorney or the court to provide
written notice or an order to the defendant and the defendant:
(1) Is incarcerated for any offense in a Department of
Corrections institution, the notice must be sent by regular
United States mail in an envelope prominently displaying the
words ' Legal Mail. '
(2) Is supervised by a supervisory authority for any offense,
the notice must be sent by regular United States mail to the
defendant's last-known address on record with the supervisory
authority.
(3) Is no longer supervised by a supervisory authority, the
notice must be sent by certified mail to the defendant's
last-known address. + }
Enrolled Senate Bill 731 (SB 731-A) Page 5
SECTION 7. { + Section 1, chapter 489, Oregon Laws 2009, is
added to and made a part of sections 2 to 6 of this 2011 Act. + }
SECTION 8. { + Sections 2 and 3, chapter 489, Oregon Laws
2009, are repealed. + }
SECTION 9. { + (1) Sections 2 to 6 of this 2011 Act and the
amendments to section 1, chapter 489, Oregon Laws 2009, by
section 1 of this 2011 Act become operative on January 1, 2012.
(2) The Department of Justice and any other public body as
defined in ORS 174.109 may adopt rules or take any other action
before the operative date specified in subsection (1) of this
2011 Act that is necessary to enable the department or public
body to exercise, on and after the operative date specified in
subsection (1) of this section, all the duties, functions and
powers conferred on the department or public body by sections 2
to 6 of this 2011 Act.
(3) Sections 2 to 6 of this 2011 Act and the amendments to
section 1, chapter 489, Oregon Laws 2009, by section 1 of this
2011 Act apply to biological evidence in the possession of a
custodian on or after the operative date specified in subsection
(1) of this section. + }
SECTION 10. { + This 2011 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2011 Act takes effect on
its passage. + }
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Passed by Senate April 4, 2011
.............................................................
Robert Taylor, Secretary of Senate
.............................................................
Peter Courtney, President of Senate
Passed by House May 25, 2011
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Enrolled Senate Bill 731 (SB 731-A) Page 6
Received by Governor:
......M.,............., 2011
Approved:
......M.,............., 2011
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2011
.............................................................
Kate Brown, Secretary of State
Enrolled Senate Bill 731 (SB 731-A) Page 7
