2003 Regular Session
By: Senator(s) Stogner, Gollott, Chaney, King, Robertson, Moffatt, Harvey, Carmichael, Hewes, Mettetal, Scoper, Kirby, Hyde-Smith, Browning, Lee, Cuevas, White, Minor
AN ACT TO CREATE THE MISSISSIPPI DNA DATA BANK; TO ENACT DEFINITIONS; TO REQUIRE CERTAIN PERSONS CONVICTED OR ACCUSED OF A FELONY TO SUBMIT TO BIOLOGICAL SAMPLING IN ORDER TO DETERMINE IDENTIFICATION CHARACTERISTICS SPECIFIC TO THE PERSON; TO PROVIDE THAT THE CRIME LAB SHALL COMPILE AND MAINTAIN THIS INFORMATION IN THE FORM OF A DNA DATA BANK; TO PROVIDE FOR THE CONFIDENTIALITY OF THE SAMPLES AND RECORDS SO MAINTAINED; TO PROVIDE FOR THE RELEASE AND DISSEMINATION OF THE INFORMATION; TO PROVIDE FOR EXPUNCTION OF THE RECORDS UNDER CERTAIN CIRCUMSTANCES; TO AUTHORIZE ASSESSMENT OF A $25.00 FEE UNDER CERTAIN CIRCUMSTANCES; TO ENACT STANDARDS FOR THE TAKING OF BIOLOGICAL SAMPLES; TO CREATE SECTION 13-1-157, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE ADMISSIBILITY OF DNA PROFILE COMPARISON INFORMATION AS EVIDENCE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act may be cited as the Mississippi DNA Data Bank Act or the DNA Data Bank Act.
SECTION 2. For the purposes of this act:
(a) "DNA" means deoxyribonucleic acid;
(b) "Biological sample" means a sample of a person's blood, saliva or tissue.
SECTION 3. (1) (a) Every person convicted of a felony on or after July 1, 2003, and every person convicted of a felony who is under sentence of incarceration on July 1, 2003, shall have a biological sample taken for DNA analysis to determine identification characteristics specific to the person. The biological sample shall be taken at any time prior to release from custody.
(b) A juvenile adjudicated delinquent on or after July 1, 2003, on the basis of an act which would constitute a felony if committed by an adult, shall have a biological sample taken for DNA analysis.
(c) Any person convicted of a felony who is in custody on or after July 1, 2003, shall provide a biological sample prior to release from custody.
(d) Every person convicted of a felony on or after July 1, 2003, who is not sentenced to a term of confinement shall provide a biological sample as a condition of the sentence imposed.
(e) (i) Every person arrested for a violent felony shall have a biological sample taken for DNA analysis to determine identification characteristics specific to the person. After a determination by a magistrate that probable cause exists for the arrest, a sample shall be taken prior to the person's release from custody.
(ii) The clerk of the court shall notify the Crime Lab of final disposition of the criminal proceedings. If the charge for which the sample was taken is dismissed or the defendant is acquitted at trial, the Crime Lab shall destroy the sample and all records thereof.
(2) If it is known that a sample has been previously taken from a person under the provisions of this act, no additional sample shall be taken.
(3) A fee of Twenty-five Dollars ($25.00) shall be charged for the taking of a required sample if the fee can be taxed as part of the costs of the criminal case resulting in the felony conviction; one-half (1/2) of the fee shall be paid into the general fund of the locality where the sample was taken and one-half (1/2) of the fee shall be paid into the General Fund of the State Treasury. The assessment shall be in addition to any other fees prescribed by law. The analysis shall be performed by the Mississippi Crime Lab or other entity designated by the Crime Lab.
(4) The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the Crime Lab in a DNA data bank.
(5) (a) Required biological samples shall be obtained at the receiving unit or at such other place as is designated by the Department of Corrections or, in the case of a juvenile, the Department of Human Services. The required samples from persons who are not sentenced to a term of confinement shall be obtained at a time and place specified by the sentencing court. Only a correctional health nurse technician or a physician, registered professional nurse, licensed practical nurse, graduate laboratory technician or phlebotomist shall take any sample of blood or tissue to be submitted for analysis. No civil liability shall attach to any person authorized to take a biological sample as provided herein as a result of the act of taking a sample from any person submitting thereto, provided the sample was taken according to recognized medical procedures. However, no person shall be relieved from liability for negligence in the taking of any sample.
(b) Chemically clean sterile disposable needles and vacuum draw tubes or swabs shall be used for taking all samples. The tube containing the sample shall be sealed and labeled with the subject's name, social security number, date of birth, race and gender; the name of the person collecting the sample; and the date and place of collection. The tubes containing the samples shall be secured to prevent tampering with the contents.
(c) The steps set forth in this section relating to the taking, handling, identification and disposition of biological samples are procedural and not substantive. Substantial compliance with this section shall be deemed to be sufficient. A sample shall be remitted to the custody of the Mississippi Crime Lab not more than fifteen (15) days following taking of a sample and shall be analyzed and stored in the DNA data bank in accordance with this act.
(6) (a) The Crime Lab shall conduct all DNA analysis in accordance with procedures adopted by the director to determine identification characteristics specific to the individual whose sample is being analyzed. The Crime Lab 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 biological sample was received and examined, and a statement as to whether the seal on the tube containing the sample had or had not been broken or otherwise tampered with.
(b) The remainder of a biological sample submitted for analysis and inclusion in the data bank may be divided, labeled as provided for the original sample and securely stored by the Crime Lab in accordance with specific procedures adopted by regulation of the Crime Lab to ensure the integrity and confidentiality of the samples. All or part of the remainder of that sample may be used only:
(i) To create a statistical database provided no identifying information on the individual whose sample is being analyzed is included, or
(ii) For retesting by the Crime Lab to validate or update a previous analysis.
(7) A report of the results of a DNA analysis conducted by the Crime Lab as authorized, including the profile and identifying information, shall be made and maintained at the Crime Lab. A certificate and the results of the analysis shall be admissible in any court as evidence of the facts therein stated. Except as specifically provided in this act, the results of the analysis shall be securely stored and shall remain confidential.
SECTION 4. (1) The Crime Lab shall receive biological samples and analyze, classify and file the results of DNA identification characteristics profiles of biological samples submitted pursuant to this act. The information maintained shall constitute the DNA data bank.
(2) The Crime Lab shall make such information available only as provided in this section.
(3) (a) The results of an analysis and comparison of the identification characteristics from two (2) or more biological samples shall be made available directly to federal, state and local law enforcement officers upon request made in furtherance of an official investigation of any criminal offense. The Crime Lab shall confirm whether there is a DNA profile on file for a specific individual if a federal, state or local law enforcement officer requests that information in furtherance of an official investigation of any criminal offense.
(b) 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 Crime Lab.
(c) 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 upon request of that person.
(4) (a) The Crime Lab shall adopt regulations governing:
(i) The methods of obtaining information from the data bank in accordance with this section;
(ii) Procedures for verification of the identity and authority of the requestor; and
(iii) Procedures and required format for requesting and supporting court-ordered documentation for expunction of records.
(b) The Crime Lab shall specify the positions which are authorized to have access to the data bank and samples submitted as a necessary function of the job.
(5) The Crime Lab shall create a separate statistical database comprised of DNA profiles of biological samples of persons whose identity is unknown. Nothing in this act shall prohibit the Crime Lab from sharing or otherwise disseminating the information in the statistical database with law enforcement or criminal justice agencies within or without the state.
(6) The Crime Lab 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 state.
SECTION 5. (1) (a) Any person who, without authority, disseminates information contained in the DNA data bank shall be guilty of a misdemeanor.
(b) Any person who disseminates, receives or otherwise uses or attempts to 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.
(c) Except as authorized by law, any person who, for purposes of having DNA analysis performed, obtains or attempts to obtain any biological sample for submission for DNA analysis under this act shall be guilty of a misdemeanor.
(2) Any person found guilty of a misdemeanor under this section shall be punished by a fine not to exceed Five Thousand Dollars ($5,000.00), imprisonment not to exceed one (1) year, or both such fine and imprisonment.
SECTION 6. A person whose DNA profile has been included in the DNA data bank pursuant to this chapter may request expunction in a case where the felony conviction on which the authority for including the person's DNA profile was based has been reversed and the case dismissed. The Crime Lab 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 for expunction pursuant to this section and a certified copy of the court order reversing and dismissing the conviction if the written request and supporting court order substantially comply with the regulations promulgated by the Crime Lab.
SECTION 7. The following shall be codified as Section 13-1-157, Mississippi Code of 1972:
13-1-157. In any criminal proceeding, DNA (deoxyribonucleic acid) testing shall be deemed to be a reliable scientific technique and the evidence of a DNA profile comparison may be admitted to prove or disprove the identity of any person. This section shall not otherwise limit the introduction of any relevant evidence bearing upon any question at issue before the court, including the accuracy and reliability of the procedures employed in the collection and analysis of a particular biological sample. The court shall, regardless of the results of the DNA analysis, if any, consider such other relevant evidence of the identity of the accused as shall be admissible in evidence.
At least twenty-one (21) days prior to commencement of the proceeding in which the results of a DNA analysis will be offered as evidence, the party intending to offer the evidence shall notify the opposing party, in writing, of the intent to offer the analysis and shall provide or make available copies of the profiles and the report or statement to be introduced. In the event that such notice is not given, and the person proffers such
evidence, then the court, in its discretion, may either allow the
opposing party a continuance or, under appropriate circumstances and if the evidence is not exculpatory to the defendant, bar the person from presenting such evidence. The period of any such continuance shall not be counted for speedy trial purposes. If the opposing party intends to object to the admissibility of such evidence he shall give written notice of that fact and the basis for his objections at least ten (10) days prior to commencement of the proceedings.
SECTION 8. Sections 1 through 6 of this act shall be codified as a separate section or article within the Mississippi Code of 1972.
SECTION 9. This act shall take effect and be in force from and after July 1, 2003.