Senate Bill 2772

AN ACT TO REQUIRE PRESERVATION OF DNA SAMPLES; TO PROVIDE PENALTIES FOR FAILURE TO COMPLY; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) Notwithstanding any other provision of law, a law enforcement agency or any other state or local agency shall preserve biological evidence that was secured in the investigation or prosecution of an offense if a defendant is under a sentence of imprisonment for the offense.

(2) For purposes of this section, the term "biological evidence" means:

(a) A sexual assault forensic examination kit; or

(b) Semen, blood, saliva, hair, skin tissue or other identified biological material.

(3) Subsection (1) shall not apply if:

(a) A court has denied a request or motion for DNA testing of the biological evidence by the defendant and no appeal is pending;

(b) The defendant knowingly and voluntarily waived the right to request DNA testing of the biological evidence in a court proceeding conducted after the effective date of this act;

(c) After a conviction becomes final and the defendant has exhausted all opportunities for direct review of the conviction, the defendant is notified that the biological evidence may be destroyed and the defendant does not file a motion opposing the destruction within one hundred eighty (180) days of receipt of the notice;

(d) (i) The evidence must be returned to its rightful owner, or is of such a size, bulk or physical character as to render retention impracticable; and

(ii) The agency takes reasonable measures to remove and preserve portions of the material evidence sufficient to permit future DNA testing; or

(e) The biological evidence has already been subjected to DNA testing and the results included the defendant as the source of such evidence.

(4) Nothing in this section shall preempt or supersede any statute, regulation, court order or other provision of law that may require evidence, including biological evidence, to be preserved.

(5) Whoever knowingly and intentionally destroys, alters or tampers with biological evidence that is required to be preserved under this section with the intent to prevent that evidence from being subjected to DNA testing or prevent the production or use of that evidence in an official proceeding, shall be fined under this title, imprisoned for not more than five (5) years, or both.

(6) Nothing in this section shall provide a basis for relief in any state or federal habeas corpus proceeding.

SECTION 2. This act shall take effect and be in force from and after July 1, 2006.