MISSISSIPPI LEGISLATURE
2014 Regular Session
To: Judiciary B; Appropriations
By: Representative Martinson
AN ACT TO CREATE THE MISSISSIPPI DNA DATABASE ACT; TO PROVIDE LEGISLATIVE INTENT; TO ESTABLISH THE STATE DNA DATABASE AND STATE DNA DATABANK; TO DEFINE CERTAIN TERMS; TO PROVIDE FOR THE POWERS AND DUTIES OF THE MISSISSIPPI CRIME LABORATORY UNDER THIS ACT; TO REQUIRE QUALIFYING OFFENDERS TO PROVIDE DNA SAMPLES; TO PROVIDE FOR ANALYSIS OF DNA SAMPLES; TO PROVIDE FOR CONFIDENTIALITY OF DNA RECORDS AND DNA SAMPLES; TO PROVIDE FOR THE EXPUNCTION OF CERTAIN DNA RECORDS AND DNA PROFILES; TO AMEND SECTIONS 45-1-27, 45-1-29, 47-5-183 AND 99-49-1, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Mississippi DNA Database Act."
SECTION 2. The Legislature hereby finds that DNA databases are important tools in criminal investigations, in the exclusion of individuals who are the subject of criminal investigations or prosecutions and in detecting recidivist acts. It is the policy of this state to assist federal, state and local criminal justice and law enforcement agencies in the identification and detection of individuals in criminal investigations and the identification and location of missing and unidentified persons. Therefore, it is in the best interests of the state to establish a DNA database and DNA databank containing DNA samples submitted by persons arrested for felony offenses, persons required to register as sex offenders and persons convicted of certain misdemeanor and felony offenses. Additionally, the State DNA Database and State DNA Databank shall include DNA records and samples necessary for the identification of missing persons and unidentified human remains, including DNA samples voluntarily contributed by relatives of missing persons.
The Legislature also finds that upon establishment of the State DNA Database, a match between casework evidence DNA samples from a criminal investigation and DNA samples from a state or federal DNA database of certain offenders may be used to sustain probable cause for the issuance of a warrant to obtain the DNA sample from an offender.
SECTION 3. There is hereby established under the administration of the Mississippi Crime Laboratory the State DNA Database and State DNA Databank. The Mississippi Crime Laboratory shall provide DNA records to the Federal Bureau of Investigation for the searching of DNA records nationwide and storage and maintenance by CODIS. The State DNA Databank shall serve as the repository for DNA samples obtained pursuant to this act. The State DNA Database shall be compatible with the procedures specified by the Federal Bureau of Investigation, including use of comparable test procedures, laboratory and computer equipment, supplies and computer platform and software. The State DNA Database shall have the capability provided by computer software and procedures administered by the Mississippi Crime Laboratory to store and maintain DNA records related to:
(a) Crime scene evidence and forensic casework;
(b) Arrestees, offenders and juveniles adjudicated delinquent who are required to provide a DNA sample under this act;
(c) Persons required to register as sex offenders under Section 45-33-25;
(d) Unidentified persons or body parts;
(e) Missing persons;
(f) Relatives of missing persons; and
(g) Anonymous DNA profiles used for forensic validation, forensic protocol development, or quality control purposes or establishment of a population statistics database for use by criminal justice agencies.
SECTION 4. The following words and phrases when used in this act shall have the meanings given to them in this section:
(a) The term "arrestee" means any person arrested for a felony offense.
(b) The term "CODIS" is derived from the Federal Bureau of Investigation's Combined DNA Index System that allows the storage and exchange of DNA records submitted by federal, state and local forensic DNA laboratories. The term "CODIS" includes the National DNA Index System (NDIS) administered and operated by the Federal Bureau of Investigation.
(c) The term "conviction" will include conviction by a jury or a court, guilty plea, plea of nolo contendere or a finding of not guilty by reason of insanity or mental disease or defect. Defect shall be considered a conviction solely for purposes of this act insofar as such finding shall require a person to provide a DNA sample.
(d) The term "criminal justice agency" is an agency or institution of a federal, state or local government, other than the office of the public defender, which performs as part of its principal function, activities relating to the apprehension, investigation, prosecution, adjudication, incarceration, supervision or rehabilitation of criminal offenders.
(e) The term "DNA" means deoxyribonucleic acid. DNA is located in the cells and provides an individual's personal genetic blueprint. DNA encodes genetic information that is the basis of human heredity and forensic identification.
(f) The term "DNA record" means the DNA identification information stored in the State DNA Database or CODIS for the purpose of generating investigative leads or supporting statistical interpretation of DNA test results. The DNA record is the result obtained from the DNA analysis. The DNA record is comprised of the characteristics of a DNA sample which are of value in establishing the identity of individuals. The results of all DNA identification analyses on an individual's DNA sample are also collectively referred to as the DNA "profile" of an individual.
(g) The term "DNA sample" is a biological sample provided by any person with respect to offenses covered by this act or submitted to the Mississippi Crime Laboratory pursuant to this act for analysis or storage, or both.
(h) The term "FBI" means the Federal Bureau of Investigation.
(i) The term "qualifying offense" means:
(i) Any felony offense; and
(ii) Any offense requiring a person to register as a sex offender under Section 45-33-21 et seq.
SECTION 5. In addition to any other powers and duties conferred by this act, the Mississippi Crime Laboratory shall:
(a) Be responsible for the policy management and administration of the state DNA identification record system to support law enforcement agencies and other criminal justice agencies.
(b) Promulgate rules and regulations to implement the provisions of this act.
(c) Provide for liaison with the FBI and other criminal justice agencies relating to the state's participation in the CODIS program and the national DNA index system or in any DNA database designated by the Mississippi Crime Laboratory.
SECTION 6. (1) Arrestees and offenders convicted of a qualifying offense shall provide a DNA sample in accordance with the provisions of this section.
(a) Effective July 1, 2014, an arrestee shall provide a DNA sample at the time of arrest or booking. An arrestee is any person arrested for a felony offense. The arresting authority
shall be responsible for obtaining a DNA sample from an arrestee required to provide a DNA sample in accordance with the rules and regulations established by the Mississippi Crime Laboratory.
(b) A person convicted or adjudicated delinquent for a qualifying offense on or after July 1, 2014, shall provide a DNA sample upon intake or as determined by the supervising agency. A person who has been convicted or adjudicated delinquent for a qualifying offense before July 1, 2014, and who is still incarcerated or under supervision as of July 1, 2014, shall provide a DNA sample as determined by the supervising agency or institution. A person required to register as a sex offender who has not already provided a DNA sample in accordance with this act shall provide a DNA sample as determined by the registration agency in consultation with the Mississippi Crime Laboratory.
(2) A person who is convicted or adjudicated delinquent for a qualifying offense on or after July 1, 2014, shall provide a DNA sample as follows:
(a) A person who is sentenced or receives a delinquency disposition to a period of incarceration shall provide a DNA sample upon intake to a prison, jail, juvenile detention facility, mental health facility or any other detention facility or institution. If the person is already confined at the time of sentencing or adjudication, the person shall provide a DNA sample immediately after the sentencing or adjudication.
(b) A person who is convicted or adjudicated delinquent for a qualifying offense shall provide a DNA sample as a condition for any sentence or adjudication which disposition will not involve a period of incarceration. The agency supervising the person shall determine the time for collection of the DNA sample.
(c) Under no circumstances shall a person who is convicted or adjudicated delinquent for a qualifying offense be released in any manner after such disposition unless and until that person has provided a DNA sample.
(3) A person who has been convicted or adjudicated delinquent for a qualifying offense before July 1, 2014, and who is still serving a period of incarceration or is still under supervised release (including probation, parole, community release or any other method of release from incarceration) in connection therewith on July 1, 2014, shall provide a DNA sample as determined by the custodial institution or supervising agency and shall not be released in any manner prior to the expiration of the person's maximum term of incarceration or supervised release unless and until that person has provided a DNA sample.
(4) When the state accepts a person from another state under any interstate compact, or under any other reciprocal agreement with any county, state or federal agency, or any other provision of law, whether or not the person is confined or released, the acceptance is conditional on the person providing a DNA sample if the person was convicted of an offense in any other jurisdiction which would be considered a qualifying offense as defined in Section 4 of this act if committed in this state, or if the person was convicted of an equivalent offense in any other jurisdiction. The person shall provide the DNA sample in accordance with the rules of the custodial institution or supervising agency.
(5) The requirements of this act are mandatory and apply regardless of whether a court advises a person that a DNA sample must be provided to the State DNA Databank and State DNA Database as a condition of probation or parole. A person who has been sentenced to death or life without the possibility of parole, or to any life or indeterminate term of incarceration is not exempt from the requirements of this act. Any person subject to this act, who has not provided a DNA sample for any reason, including the person's release prior to July 1, 2014, an oversight or error, or because of the person's transfer from another jurisdiction, shall give a DNA sample for inclusion in the State DNA Database after being notified by the Department of Corrections. In the event that a person's DNA sample is not adequate for any reason, the person shall provide another DNA sample for analysis.
(6) The agency having control, custody and/or supervision of persons convicted or adjudicated delinquent for qualifying offenses may, in consultation with the Mississippi Crime Laboratory promulgate rules or regulations specifying the time and
manner of collection of the DNA samples as well as any other matter necessary to carry out its responsibilities under this act.
(7) The agency or institution having custody or control or the agency providing supervision of persons convicted or adjudicated delinquent for qualifying offenses, as appropriate, is authorized to contract with third parties to provide for the collection of the DNA samples described in subsection (2), (3) or (4) of this section.
(8) A fingerprint or fingerprints shall be provided from an arrestee or a person convicted of, or adjudicated delinquent for, a qualifying offense for the purpose of verifying the identity of that person.
(9) DNA samples collected pursuant to this act shall be forwarded to the Mississippi Crime Laboratory in accordance with procedures established by the Mississippi Crime Laboratory.
(10) Persons authorized to collect DNA samples shall not be civilly or criminally liable for the collection of a DNA sample pursuant to this act if they perform these duties in good faith and in a reasonable manner according to generally accepted medical or other professional practices.
(11) Duly authorized law enforcement and corrections personnel may employ reasonable force in cases where an individual refuses to provide a DNA sample required under this act, and no such employee shall be civilly or criminally liable for the use of such reasonable force.
(12) Any person who is subject to the requirements of this act, and who, after receiving notification of the requirement to provide a DNA sample, knowingly refuses to provide such DNA sample, shall be guilty of a felony punishable by a fine of not more than Three Thousand Dollars ($3,000.00) or imprisonment in the custody of the Department of Corrections for not more than three (3) years, or both.
(13) Unless the court finds that undue hardship would result, a mandatory fee of One Hundred Dollars ($100.00), which shall be in addition to any other costs imposed pursuant to statutory authority, shall automatically be assessed on any person convicted of, or adjudicated delinquent for, a qualifying offense. All fees collected pursuant to this section shall be transmitted to the Mississippi Crime Laboratory to defray the costs of the administration of this act.
(14) The detention, arrest or conviction of a person based upon a database match or database information is not invalidated if it is determined that the sample was obtained or placed in the database by mistake.
SECTION 7. (1) The Mississippi Crime Laboratory shall prescribe procedures for the collection, submission, identification, analysis, storage and disposition of the DNA samples and DNA records collected under this act. The DNA records shall be securely stored in the State DNA Database consistent with the procedures established by the FBI. These procedures shall also require compliance with national quality assurance standards to ensure that the DNA records satisfy standards for acceptance of such records into the national DNA index.
(2) The analyses to be performed on each DNA sample collected pursuant to this act shall be used only for law enforcement identification purposes or to assist in the recovery or identification of human remains or missing persons. Analyses of DNA samples obtained pursuant to this act are not authorized for identification of any medical or genetic disorder.
(3) All or part of the remainder of the DNA sample stored in the State DNA Databank may be used only (a) for forensic validation studies and forensic protocol development purposes and to create a statistical database provided that no personally identifying information is included, or (b) for retesting to validate or update the original analysis or for quality control purposes.
(4) Searches of the State DNA Database shall be performed in accordance with state and federal law and procedures.
(5) The results of any analyses conducted pursuant to this act from a person adjudicated delinquent may be used for any law enforcement identification purpose, including adult prosecutions.
(6) The Mississippi Crime Laboratory is authorized to revoke the right of any public forensic DNA laboratory within the state to access and contribute DNA records to the State DNA Database if the required disclosure and quality assurance standards required by this act are not met.
(7) The Mississippi Crime Laboratory is authorized to contract with third parties for the purposes of implementing this act. Any other party contracting to carry out the functions of this act shall be subject to the same restrictions and requirements of this act, insofar as applicable, as the Mississippi Crime Laboratory, as well as any additional restrictions imposed by the Mississippi Crime Laboratory.
SECTION 8. (1) All DNA records and DNA samples submitted to the Mississippi Crime Laboratory pursuant to this act shall be confidential and may not be disclosed to or shared with any person or agency unless disclosure is authorized by this act.
(2) All DNA records and DNA samples submitted to the Mississippi Crime Laboratory pursuant to this act shall be exempt from the Mississippi Public Records Act of 1983.
(3) In the case of a criminal proceeding, requests to access a person's DNA record shall be in accordance with the rules for criminal discovery. The Mississippi Crime Laboratory shall not be required to provide the State DNA Database for criminal discovery purposes.
(4) DNA records and DNA samples submitted to the Mississippi Crime Laboratory may only be released for the following authorized purposes:
(a) For law enforcement identification purposes, including the identification of human remains, to federal, state or local criminal justice agencies;
(b) For criminal defense and appeal purposes, to a defendant, who shall have access to samples and analyses performed in connection with the case in which such defendant is charged or was convicted; and
(c) If personally identifiable information is removed, for forensic validation studies, forensic protocol development or quality control purposes and for establishment and/or maintenance of a population statistics database, to federal, state or local forensic laboratories or law enforcement agencies.
(5) Any person who (a) knowingly or intentionally discloses a DNA record or the results of a forensic DNA analysis, to a person or agency other than one authorized to have access to such records under this section; or (b) knowingly or intentionally uses or receives DNA records, or the results of a forensic DNA analysis, for purposes other than those authorized under this section; or (c) knowingly or intentionally tampers or attempts to tamper with any DNA sample, the result of any forensic DNA analysis of a DNA sample collected pursuant to this act, or the DNA sample collection container, shall be guilty of a felony punishable by a fine of not more than Five Thousand Dollars ($5,000.00) or imprisonment in the custody of the Department of Corrections for not more than five (5) years, or both.
(6) In order to maintain the computer system security of the Mississippi Crime Laboratory DNA database and DNA databank program, the computer software and database structures used by the Mississippi Crime Laboratory to implement this act are confidential.
SECTION 9. (1) A person whose DNA record or DNA profile has been included in the State DNA Database in accordance with this act may request expunction on the grounds that: (a) the conviction or delinquency adjudication on which the authority for including that person's DNA record or DNA profile was based has been reversed and the case dismissed; or (b) the arrest on which the authority for including the person's DNA record or DNA profile was based has resulted in the charge being dismissed or has resulted in acquittal or no charge was filed within the applicable time period.
(2) Upon receipt of (a) written request for expunction; (b) a certified copy of the final court order reversing and dismissing the conviction or delinquency adjudication; and (c) any other information necessary to ascertain the validity of the request, the Mississippi Crime Laboratory shall expunge all DNA records and identifiable information in the database pertaining to the person and destroy the DNA sample from the person, unless the Mississippi Crime Laboratory determines that the person has otherwise become obligated to submit a DNA sample.
(3) The Mississippi Crime Laboratory is not required to destroy an item of physical evidence obtained from a sample if evidence relating to another person would thereby be destroyed.
(4) Any identification, warrant, probable cause to arrest or arrest based upon a database match is not invalidated due to a failure to expunge or a delay in expunging records.
SECTION 10. Section 45-1-27, Mississippi Code of 1972, is amended as follows:
45-1-27. The director shall have responsibilities and duties including but not limited to the following:
(a) To plan and give general direction to activities or programs for which he is responsible, through the issuance of directives and orders.
(b) To review proposed changes in policies affecting the operation of the division under his direction.
(c) To maintain liaison with other agencies, divisions or departments of state and federal government.
(d) To approve and maintain uniform procedures and standards of operation for the laboratory.
(e) To supervise and approve procedures and processing of physical evidence.
(f) To present testimony in court in analysis of physical evidence.
(g) To supervise the State Medical Examiner.
(h) To attend scientific conferences and hold classes for law enforcement officers.
(i) To present budget requests to the Legislative Budget Office and to legislative committees.
(j) To perform those duties required by House Bill No.____, 2014 Regular Session.
SECTION 11. Section 45-1-29, Mississippi Code of 1972, is amended as follows:
45-1-29. (1) The Mississippi Crime Laboratory shall be funded separately from the Department of Public Safety. Any appropriated funds shall be maintained in an account separate from any funds of the Department of Public Safety and shall never be commingled with any funds of the department. However, nothing in this section shall be construed to prohibit the utilization of the combined resources of the Mississippi Crime Laboratory, the Division of Support Services of the Department of Public Safety or the Mississippi Justice Information Center to efficiently carry out the mission of the Department of Public Safety.
(2) Grants and donations to the Crime Laboratory may be accepted from individuals, the federal government, firms, corporations, foundations and other interested organizations and societies.
(3) The Commissioner of Public Safety shall establish and the Division of Support Services of the Department of Public Safety shall collect for services rendered proper fees commensurate with the services rendered by the Crime Laboratory. Those fees shall be deposited into a special fund in the State Treasury to the credit of the Crime Laboratory and expended in accordance with applicable rules and regulations of the Department of Finance and Administration. Those fees may be used for any authorized expenditure of the Crime Laboratory except expenditures for salaries, wages and fringe benefits.
(4) Upon every individual convicted of a felony, every individual who is nonadjudicated on a felony or misdemeanor case under Section 99-15-26, and every individual who participates in a pretrial intervention program established under Section 99-15-101 et seq., in a case where the Crime Laboratory provided forensic science or laboratory services in connection with the case, the court shall impose and collect a separate laboratory analysis fee of Three Hundred Dollars ($300.00), in addition to any other assessments and costs imposed by statutory authority, unless the court finds that undue hardship would result by imposing the fee. All fees collected under this section shall be deposited into the special fund of the Crime Laboratory created in subsection (3) of this section.
(5) Funds generated by fees assessed by House Bill No.____, 2014 Regular Session, shall be forwarded to the Mississippi Crime Laboratory.
SECTION 12. Section 47-5-183, Mississippi Code of 1972, is amended as follows:
47-5-183. The Mississippi Department of Corrections is authorized, subject to the availability of funds, to secure a biological sample for purposes of DNA identification analysis from every individual convicted of a felony or in its custody before release from or transfer to a state correctional facility or county jail or other detention facility and in accordance with House Bill No.____, 2014 Regular Session.
SECTION 13. Section 99-49-1, Mississippi Code of 1972, is amended as follows:
99-49-1. (1) Legislative intent. The Legislature finds that:
(a) The value of properly preserved biological evidence has been enhanced by the discovery of modern DNA testing methods, which, coupled with a comprehensive system of DNA databases that store crime scene and offender profiles, allow law enforcement to improve its crime-solving potential;
(b) Tapping the potential of preserved biological evidence requires the proper identification, collection, preservation, storage, cataloguing and organization of such evidence;
(c) Law enforcement agencies indicate that "cold" case investigations are hindered by an inability to access biological evidence that was collected in connection with criminal investigations;
(d) Innocent people mistakenly convicted of the serious crimes for which biological evidence is probative cannot prove their innocence if such evidence is not accessible for testing in appropriate circumstances;
(e) It is well established that the failure to update policies regarding the preservation of evidence squanders valuable law enforcement resources, manpower hours and storage space; and
(f) Simple but crucial enhancements to protocols for properly preserving biological evidence can solve old crimes, enhance public safety and settle claims of innocence.
(2) Definitions. For the purposes of this section:
(a) "Biological evidence" means the contents of a sexual assault examination kit or any item that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids or other identifiable biological material that was collected as part of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense. This definition applies whether that material is catalogued separately, such as on a slide, swab or in a test tube, or is present on other evidence, including, but not limited to, clothing, ligatures, bedding or other household material, drinking cups, cigarettes or other items.
(b) "DNA" means deoxyribonucleic acid.
(c) "Custody" means persons currently incarcerated; civilly committed; on parole or probation; or subject to sex offender registration for the period of the registration or for the first five (5) years of the registration, whichever is the shorter period.
(d) "Profile" means a unique identifier of an individual, derived from DNA.
(e) "State" refers to any governmental or public entity within Mississippi, including all private entities that perform such functions, and its officials or employees, including, but not limited to, law enforcement agencies, prosecutors' offices, courts, public hospitals, crime laboratories, and any other entity or individual charged with the collection, storage or retrieval of biological evidence.
(3) Preservation of evidence procedures. (a) The state shall preserve all biological evidence:
(i) That is secured in relation to an investigation or prosecution of a crime for the period of time that the crime remains unsolved; or
(ii) That is secured in relation to an investigation or prosecution of a crime for the period of time that the person convicted of that crime remains in custody.
(b) This section applies to evidence that:
(i) Was in the possession of the state during the investigation and prosecution of the case; and
(ii) At the time of conviction was likely to contain biological material.
(c) The state shall not destroy biological evidence should one or more additional co-defendants, convicted of the same crime, remain in custody, and shall preserve the evidence for the period of time in which all co-defendants remain in custody.
(d) The state shall retain evidence in the amount and manner sufficient to develop a DNA profile from the biological material contained in or included on the evidence.
(e) Upon written request by the defendant, the state shall prepare an inventory of biological evidence that has been preserved in connection with the defendant's criminal case.
(f) The state may destroy evidence that includes biological material before the expiration of the time period specified in paragraph (a) of this subsection if all of the following apply:
(i) No other provision of federal or state law requires the state to preserve the evidence.
(ii) The state sends certified delivery of notice of intent to destroy the evidence to:
1. All persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment related to evidence in question;
2. The attorney of record for each person in custody;
3. The Mississippi Office of Indigent Appeals;
4. The district attorney in the county of conviction; and
5. The Mississippi Attorney General.
(iii) No person who is notified under paragraph (f)(ii) of this subsection does either of the following within sixty (60) days after the date on which the person received the notice:
1. Files a motion for testing of evidence under Title 99, Chapter 39, Mississippi Code of 1972; or
2. Submits a written request for retention of evidence to the state entity which provided notice of its intent to destroy evidence under paragraph (f)(ii) of this subsection.
(g) If, after providing notice under paragraph (f)(ii) of this subsection of its intent to destroy evidence, the state receives a written request for retention of the evidence, the state shall retain the evidence while the person remains in custody.
(h) The state shall not be required to preserve physical evidence that is of such a size, bulk or physical character as to render retention impracticable. When such retention is impracticable, the state shall remove and preserve portions of the material evidence likely to contain biological evidence related to the offense, in a quantity sufficient to permit future DNA testing, before returning or disposing of the physical evidence.
(i) Should the state be called upon to produce biological evidence that could not be located and whose preservation was required under the provisions of this statute, the chief evidence custodian assigned to the entity charged with the preservation of said evidence shall provide an affidavit in which the custodian stipulates, under penalty of perjury, an accurate description of the efforts taken to locate that evidence and that the evidence could not be located.
(4) Any evidence in a murder, manslaughter or felony sexual assault case in the possession of the state on July 1, 2009, whether biological or not, shall be preserved by the state consistent with the legislative intent expressed in subsection (1) and subject to compliance with subsection (3)(f).
(5) Remedies for noncompliance. If the court finds that biological evidence was destroyed in violation of the provisions of this section, it may impose appropriate sanctions and order appropriate remedies.
(6) DNA samples shall be collected and stored as provided in House Bill No.____, 2014 Regular Session.
SECTION 14. The provisions of this act shall be liberally construed and shall be held to be in addition to, and not in substitution for or a limitation of, the provisions of any other law. If any provision or part of this act is held unconstitutional or otherwise invalid, the remainder of this act shall not be affected.
SECTION 15. This act shall take effect and be in force on and after July 1, 2015, provided that sufficient funding has been appropriated to the Mississippi Crime Laboratory and other affected agencies to implement the provisions of this act. Effective on July 1, 2014, the Mississippi Crime Laboratory may promulgate any rules or regulations necessary to implement the provisions of this act.