MISSISSIPPI LEGISLATURE
2014 Regular Session
To: Judiciary B; Appropriations
By: Representative Moak
AN ACT TO PROVIDE FOR DNA TESTING GENETIC MARKER ANALYSIS; TO DEFINE CERTAIN TERMS; TO ESTABLISH A STATE DNA DATABASE FOR THE STORAGE OF DNA SAMPLES AND EVIDENCE; TO PROVIDE A FEE FOR TESTING; TO REQUIRE THAT DNA SAMPLES SHALL BE OBTAINED AFTER A FELONY ARREST; TO PROVIDE FOR THE PURGING OF THE DATABASE IN CERTAIN CIRCUMSTANCES; TO PROVIDE PENALTIES FOR VIOLATIONS OF THIS ACT; TO PROVIDE FOR THE AUTHORIZED USE OF DNA EVIDENCE; TO PROVIDE FOR STANDARDIZED FORMS TO USE AS REQUIRED BY THIS ACT; TO REQUIRE BOARDS OF SUPERVISORS TO ESTABLISH FORENSIC LABORATORIES; TO PROVIDE AUTHORIZED USES OF GENETIC MARKER ANALYSIS; TO BRING FORWARD SECTIONS 45-1-25, 45-1-27, 47-5-183 AND 99-49-1, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following words and phrases shall have the meanings ascribed herein, unless the context clearly indicates otherwise:
(a) "Agency of criminal justice" means the Mississippi Crime Laboratory and any court with jurisdiction over criminal offenses.
(b) "Biological specimen" means a biological sample, tissue, fluid or other bodily sample suitable for genetic marker analysis, obtained from a person or from physical evidence.
(c) "CODIS" means the Federal Bureau of Investigation's Combined DNA Index System that allows for the storage and exchange of DNA records submitted by federal, state and local forensic DNA laboratories. The term includes the National DNA Index System administered and operated by the Federal Bureau of Investigation.
(d) "DNA" means deoxyribonucleic acid which is located in the cells of a person and which provides the genetic blueprint of a person.
(e) "DNA profile" means the genetic constitution of a person at defined locations in the DNA of the person.
(f) "DNA record" means a database record, stored in the State DNA Database or CODIS, that includes the DNA profile of a person and data required to manage the record, including, without limitation, the identity of the agency submitting the database record, the identification number of the biological specimen and the names of personnel who conducted the genetic marker analysis.
(g) "Forensic laboratory" means the Mississippi Crime Laboratory or an entity authorized to collect and store evidence related to crime.
(h) "Genetic marker analysis" means the analytical testing process of a biological specimen that results in a DNA profile.
(i) "State DNA Database" means the database established pursuant to this act.
SECTION 2. (1) Except as otherwise provided in this section, upon the conviction of a defendant for a felony, an agency of criminal justice that has in its possession or custody any biological evidence secured in connection with the investigation or prosecution of the defendant shall preserve such evidence until the expiration of any sentence imposed on the defendant.
(2) Biological evidence subject to the requirements of this section may be consumed for testing upon notice to the defendant.
(3) The Mississippi Crime Laboratory may establish procedures for:
(a) Retaining probative samples of biological evidence subject to the requirements of this section; and
(b) Disposing of bulk evidence that does not affect the suitability of such probative samples for testing.
(4) The provisions of this section must not be construed to restrict or limit an agency of criminal justice from establishing procedures for the retention, preservation and disposal of biological evidence secured in connection with other criminal cases.
(5) As used in this section, "biological evidence" means any semen, blood, saliva, hair, skin tissue or other identified biological material removed from physical evidence.
SECTION 3. (1) The State DNA Database is hereby established to serve as this state's repository for DNA records and to provide DNA records to the Federal Bureau of Investigation.
(2) The Mississippi Crime Laboratory shall oversee, manage and administer the State DNA Database and shall:
(a) Implement policies for the management and administration of the State DNA Database, including, without limitation, any system for the identification of DNA profiles and DNA records that is necessary to support agencies of criminal justice.
(b) Adopt policies and protocols and enter into any necessary agreements to implement the provisions of this act.
(c) Ensure that all searches of the State DNA Database are performed in accordance with state and federal law.
(d) Act as a liaison between the Federal Bureau of Investigation and other state agencies of criminal justice relating to this State's participation in CODIS.
SECTION 4. (1) If a person is arrested for a felony pursuant to a warrant, the law enforcement agency making the arrest shall:
(a) Submit the name, date of birth, fingerprints and any other information identifying the person to the Mississippi Crime Laboratory;
(b) Upon booking the person into a city or county jail or detention facility, and before the person is released from custody, obtain a biological specimen from the person, through a cheek swab, pursuant to the provisions of this section; and
(c) Submit the biological specimen to the appropriate forensic laboratory for genetic marker analysis in accordance with the provisions of this section.
(2) If a person is arrested for a felony without a warrant, the law enforcement agency making the arrest shall:
(a) Submit the name, date of birth, fingerprints and any other information identifying the person to the Mississippi Crime Laboratory;
(b) Upon booking the person into a city or county jail or detention facility, and before the person is released from custody, obtain a biological specimen from the person, through a cheek swab, pursuant to the provisions of this section;
(c) Submit the biological specimen to the appropriate forensic laboratory for genetic marker analysis in accordance with the provisions of this section after receiving notice that a court has determined that probable cause existed for the person's arrest; and
(d) If a court determines that probable cause did not exist for the person's arrest, destroy the biological specimen within five (5) business days after receiving notice of the determination by the court.
(3) A law enforcement agency shall not knowingly obtain a biological specimen from a person who has previously submitted such a specimen for an arrest or conviction of a prior offense unless the law enforcement agency or a court determines that an additional specimen is necessary.
(4) If a law enforcement agency has not already obtained a biological specimen from a person arrested for an offense for which a biological specimen must be obtained pursuant to this section at the time a court sets bail or considers releasing a person on his or her own recognizance, the court shall:
(a) Require the person to provide a biological specimen as a condition of being admitted to bail or released on his or her own recognizance; and
(b) Require the biological specimen to be provided to the Mississippi Crime Laboratory.
(5) The Attorney General or a district attorney may petition a circuit court for an order requiring a person arrested for an offense for which a biological specimen must be obtained pursuant to this section to provide a biological specimen:
(a) Through a cheek swab; or
(b) By alternative means, if the person will not cooperate.
Nothing in this subsection shall be construed to prevent the collection of a biological specimen by order of a court of competent jurisdiction or the collection of a biological specimen from a person who is required to provide such a specimen pursuant to this section.
(6) Upon receipt of a biological specimen, the Mississippi Crime Laboratory shall proceed with a genetic marker analysis. If the Mississippi Crime Laboratory determines that the biological specimen is inadequate or otherwise unusable, the law enforcement agency may obtain an additional biological specimen from the person arrested unless the person arrested is eligible to request destruction of the biological specimen and purging of his or her DNA profile or DNA record pursuant to this section.
(7) Upon completion of a genetic marker analysis of a person pursuant to this section, the Mississippi Crime Laboratory shall submit the DNA profile of the person for inclusion in the State DNA Database and CODIS. The submission shall include an indication on the criminal history record of the person regarding the collection of a biological specimen and the creation of a DNA profile, but may not include, in its records, any other information relating to the biological specimen, DNA profile or DNA record of the person.
SECTION 5. (1) A person whose record of criminal history indicates the collection of a biological specimen and whose DNA profile and DNA record have been included in the State DNA Database and CODIS may make a written request to the Mississippi Crime Laboratory that the biological specimen be destroyed and the DNA profile and DNA record be purged from the forensic laboratory, the State DNA Database and CODIS on the grounds that:
(a) The conviction on which the authority for keeping the biological specimen or the DNA profile or DNA record has been reversed and the case dismissed; or
(b) The arrest which led to the inclusion of the biological specimen or the DNA profile or DNA record:
(i) Has resulted in a felony charge that has been resolved by a dismissal, the successful completion of a diversion program, a conditional discharge, an acquittal or an agreement entered into by a prosecuting attorney and a defendant in which the defendant, in exchange for a plea of guilty, guilty but mentally ill or nolo contendere, receives a charge other than a felony; or
(ii) Has not resulted in any additional criminal charge for a felony within three (3) years after the date of the arrest.
(2) Within six (6) weeks after receiving a written request pursuant to subsection (1) of this section, the Mississippi Crime Laboratory shall forward the request and all supporting documentation to the forensic laboratory holding the biological specimen. Except as otherwise provided in subsection (3) of this section, upon receipt of the written request, the forensic laboratory shall destroy any biological specimen from the person and purge the DNA profile of the person if the written request is accompanied by:
(a) A certified copy of the court order reversing and dismissing the conviction; or
(b) For any biological specimen obtained pursuant to an arrest for which a biological specimen must be provided pursuant to:
(i) A certified copy of the dismissal, the successful completion of a diversion program, a conditional discharge, an acquittal or the agreement entered into by the prosecuting attorney and the defendant in which the defendant, in exchange for a plea of guilty, guilty but mentally ill or nolo contendere, received a charge other than a felony; or
(ii) A sworn affidavit from the law enforcement agency which submitted the biological specimen that no felony charges arising from the arrest have been filed within three (3) years after the date of the arrest.
(3) The forensic laboratory shall not destroy a biological specimen or purge the DNA profile of a person if the forensic laboratory is notified by a law enforcement agency that the person has a prior felony, a new felony arrest or a pending felony charge for which collection of a biological specimen is authorized pursuant to.
(4) If a forensic laboratory:
(a) Determines that the requirements to destroy a biological specimen or purge a DNA profile or DNA record of a person have not been met, the forensic laboratory shall notify the Mississippi Crime Laboratory of that fact. The crime laboratory shall, as soon as reasonably practicable, notify the person that his or her request has been denied.
(b) Destroys a biological specimen and purges a DNA profile pursuant to this section, the forensic laboratory shall take the following actions:
(i) Notify the State DNA Database that the DNA profile and DNA record of the person must be purged from the State DNA Database and from CODIS. Upon receipt of such notification, the DNA profile and DNA record of the person must be purged from the State DNA Database and CODIS.
(ii) Notify the Mississippi Crime Laboratory that the forensic laboratory has destroyed the biological specimen and purged the DNA profile of the person and has notified the State DNA Database that the DNA profile and DNA record of the person must be purged from the State DNA Database and CODIS. Upon receipt of such notification, the crime laboratory shall, as soon as reasonably practicable, notify the person that his or her request has been granted, his or her biological specimen has been destroyed by the forensic laboratory and his or her DNA profile and DNA record have been purged from the forensic laboratory, the State DNA Database and CODIS.
SECTION 6. Any cost that is incurred to obtain a biological specimen from a person or to destroy a biological specimen or to purge a DNA profile or DNA record from a forensic laboratory, the State DNA Database or CODIS is a charge against the county in which the person was arrested.
SECTION 7. (1) The biological specimen, DNA profile, DNA record and any other information identifying or matching a biological specimen with a person must, at all times, be stored and maintained in the forensic laboratory, State DNA Database or CODIS, as applicable, and may only be made available in accordance with the provisions of this section. The biological specimen, DNA profile, DNA record, other information identifying or matching a biological specimen with a person and all computer software used by the forensic laboratory and the State DNA Database for the State DNA Database and for CODIS are confidential and are not public books or records within the meaning of the Mississippi Public Records Act of 1983.
(2) If any information related to a biological specimen, DNA profile or DNA record contained in CODIS is requested, the forensic laboratory shall comply with all applicable provisions of federal law and all applicable statutes and regulations governing the release of such information. All requests for any such information must be directed through the casework CODIS administrator of the forensic laboratory. To minimize duplication in the collection of a biological specimen and the conducting of a genetic marker analysis, a forensic laboratory may make information available to any agency of criminal justice to verify whether a biological specimen has been collected from a person and a genetic marker analysis has been conducted.
(3) Except as otherwise authorized by this section or by federal law or by another specific statute, a biological specimen obtained, a DNA profile, a DNA record and any other information identifying or matching a biological specimen with a person must not be shared with or disclosed to any person other than the authorized personnel who have possession and control of the biological specimen, DNA profile, DNA record or other information identifying or matching a biological specimen with a person, except pursuant to:
(a) A court order; or
(b) A request from a law enforcement agency during the course of an investigation.
A person who violates any provision of this subsection is guilty of a felony punishable by a fine of not more than Three Thousand Dollars ($3,000.00) or imprisonment for not more than three (3) years, or both.
SECTION 8. (1) If a defendant is convicted of an offense listed in subsection (4) of this section:
(a) The name, social security number, date of birth, fingerprints and any other information identifying the defendant must be submitted to the Mississippi Crime Laboratory; and
(b) Unless a biological specimen was previously obtained upon arrest pursuant to, a biological specimen must be obtained from the defendant pursuant to the provisions of this section and the specimen must be used for a genetic marker analysis. If a biological specimen was previously obtained upon arrest pursuant to, the court shall notify the Mississippi Crime Laboratory, who in turn shall notify the appropriate forensic laboratory.
(2) If the defendant is committed to the custody of the Department of Corrections, the Department of Corrections shall arrange for the biological specimen to be obtained from the defendant. The Department of Corrections shall provide the specimen to the forensic laboratory that has been designated by the county in which the defendant was convicted to conduct or oversee genetic marker analysis for the county.
(3) If the defendant is not committed to the custody of the Department of Corrections, the law enforcement agency with custody shall arrange for the biological specimen to be obtained from the defendant. The agency shall provide the specimen to the forensic laboratory that has been designated by the county in which the defendant was convicted to conduct or oversee genetic marker analysis for the county. Any cost that is incurred to obtain a biological specimen from a defendant pursuant to this subsection is a charge against the county in which the defendant was convicted and must be paid by the county.
(4) Except as otherwise provided in subsection (5) of this section, the provisions of subsection (1) of this section apply to a defendant who is convicted of:
(a) A felony;
(b) A crime against a child;
(c) A sexual offense;
(d) Abuse or neglect of an older person or a vulnerable person;
(e) A second or subsequent offense for stalking;
(f An attempt or conspiracy to commit an offense listed in paragraphs (a) to (e), inclusive;
(g) Failing to register with a local law enforcement agency as a convicted person as required by law, if the defendant previously was:
(i) Convicted in this state of committing an offense listed in paragraph (a), (d), (e) or (f); or
(ii) Convicted in another jurisdiction of committing an offense that would constitute an offense listed in paragraph (a), (d), (e) or (f) if committed in this state;
(iii) Failing to register with a local law enforcement agency after being convicted of a sexual offense as required pursuant to Section 45-33-25.
(5) If it is determined that a defendant's biological specimen has previously been submitted for conviction of a prior offense, an additional sample is not required.
(6) Except as otherwise authorized by federal law or by specific statute, a biological specimen obtained pursuant to this section, the DNA profile, the DNA record and any other information identifying or matching a biological specimen with a person must not be shared with or disclosed to any person other than the authorized personnel who have possession and control of the biological specimen, the DNA profile, the DNA record or other information identifying or matching a biological specimen with a person, except pursuant to:
(a) A court order; or
(b) A request from a law enforcement agency during the course of an investigation.
(7) A person who violates any provision of subsection (6) is guilty of a category C felony punishable by a fine of not more than Three Thousand Dollars ($3,000.00) or imprisonment for not more than three (3) years, or both.
SECTION 9. (1) If a biological specimen is obtained from a person and the person is convicted of the offense for which the biological specimen was obtained, the court, in addition to any other penalty, shall order the person, to the extent of the person's financial ability, to pay the sum of One Hundred Fifty Dollars ($150.00) as a fee for obtaining the specimen and for conducting the genetic marker analysis. The fee:
(a) Must be stated separately in the judgment of the court or on the docket of the court;
(b) Must be collected from the person before or at the same time that any fine imposed by the court is collected from the person; and
(c) Must not be deducted from any fine imposed by the court.
(2) All money that is collected pursuant to subsection (1) of this section must be paid by the clerk of the court to the county treasurer on or before the fifth day of each month for the preceding month.
(3) The board of supervisors of each county shall by ordinance create in the county treasury a fund to be designated as the fund for genetic marker analysis. The county treasurer shall deposit money that is collected pursuant to subsection (2) of this section in the fund for genetic marker analysis. The money must be accounted for separately within the fund.
(4) Each month, the county treasurer shall use the money deposited in the fund for genetic marker analysis to pay for the actual amount charged to the county for obtaining a biological specimen from a person.
(5) The board of supervisors of each county may apply for and accept grants, gifts, donations, bequests or devises which the board of supervisors shall deposit with the county treasurer for credit to the fund for genetic marker analysis.
(6) If money remains in the fund after the county treasurer makes the payments required by subsection (4) of this section, the county treasurer shall pay the remaining money each month to the forensic laboratory that is designated by the county to conduct or oversee genetic marker analysis for the county. A forensic laboratory that receives money pursuant to this subsection shall use the money to cover any expense related to genetic marker analysis.
SECTION 10. (1) If a law enforcement agency is supervising a probationer or parolee pursuant to an interstate compact and the probationer or parolee is or has been convicted in another jurisdiction of violating a law that prohibits the same or similar conduct as an offense listed in subsection (4) of Section 8 of this act, unless a biological specimen was previously obtained upon arrest pursuant to, the law enforcement agency shall arrange for a biological specimen to be obtained from the probationer or parolee.
(2) After a biological specimen is obtained from a probationer or parolee pursuant to this section, the law enforcement agency shall:
(a) Provide the biological specimen to the forensic laboratory that has been designated by the county in which the probationer or parolee is residing to conduct or oversee genetic marker analysis for the county; and
(b) Submit the name, social security number, date of birth, fingerprints and any other information identifying the probationer or parolee to the Mississippi Crime Laboratory.
(3) Except as otherwise authorized by federal law or by specific statute, a biological specimen obtained pursuant to this section, the DNA profile, the DNA record and any other information identifying or matching a biological specimen with a person must not be shared with or disclosed to any person other than the authorized personnel who have possession and control of the biological specimen, the DNA profile, the DNA record or other information identifying or matching a biological specimen with a person, except pursuant to:
(a) A court order; or
(b) A request from a law enforcement agency during the course of an investigation.
(4) A person who violates any provision of subsection (3) of this section is guilty of a felony punishable by a fine of not more than Three Thousand Dollars ($3,000.00) or imprisonment for not more than three (3) years, or both.
(5) A probationer or parolee, to the extent of his or her financial ability, shall pay the sum of One Hundred Fifty Dollars ($150.00) to the law enforcement agency as a fee for obtaining the biological specimen and for conducting the genetic marker analysis. Except as otherwise provided in subsection (6) of this section, the fee required pursuant to this subsection must be collected from a probationer or parolee at the time the biological specimen is obtained from the probationer or parolee.
(6) A probationer or parolee may arrange to make monthly payments of the fee required pursuant to subsection (5) of this section. If such arrangements are made, the division shall provide a probationer or parolee with a monthly statement that specifies the date on which the next payment is due.
(7) Any unpaid balance for a fee required pursuant to subsection (5) of this section is a charge against the law enforcement agency.
(8) The law enforcement agency shall deposit money that is collected pursuant to this section in the Fund for Genetic Marker Analysis, which is hereby created in the State General Fund. The money deposited in the Fund for Genetic Marker Analysis must be used to pay for the actual amount charged to the law enforcement agency for obtaining biological specimens from probationers and parolees, and for conducting genetic marker analysis of the biological specimens.
SECTION 11. (1) The Department of Public Safety shall establish a standard form for use by every law enforcement agency in this state that:
(a) Sets forth the authorized use of a biological specimen.
(b) Identifies the circumstances and process under which a person may have his or her biological specimen destroyed and his or her DNA profile or DNA record purged from the forensic laboratory, the State DNA Database and CODIS.
(c) May be completed and submitted to the Mississippi Crime Laboratory by a person to request that his or her biological specimen be destroyed and his or her DNA profile or DNA record be purged from the forensic laboratory, the State DNA Database and CODIS.
(2) A law enforcement agency shall provide the form to a person:
(a) Before obtaining a biological specimen;
(b) Upon release from custody if the person has submitted a biological specimen; or
(c) At the request of the person, if the person believes that he or she is eligible to have his or her biological specimen destroyed and his or her DNA profile or DNA record purged from the forensic laboratory, the State DNA Database and CODIS.
SECTION 12. (1) The board of supervisors of each county shall designate a forensic laboratory to conduct or oversee for the county any genetic marker analysis that is required.
(2) The forensic laboratory designated by the board of supervisors pursuant to subsection (1) of this section:
(a) Must be operated by this state or one of its political subdivisions; and
(b) Must satisfy or exceed the standards for quality assurance that are established by the Federal Bureau of Investigation for participation in CODIS.
SECTION 13. (1) A forensic laboratory shall:
(a) Prescribe protocols and procedures for the collection, submission, identification, genetic marker analysis, storage, maintenance, uploading and disposition of biological specimens, DNA profiles and DNA records.
(b) Securely upload DNA records to the State DNA Database.
(c) Acquire and maintain computer hardware and software necessary to store, maintain and upload DNA profiles and DNA records relating to:
(i) Crime scene evidence and forensic casework;
(ii) Persons arrested for a felony and persons convicted of an offense listed in subsection (4) of who are required to provide a biological specimen;
(iii) Persons required to register as sex offenders pursuant to Section 45-33-25;
(iv) Unidentified persons or body parts;
(v) Missing persons;
(vi) Relatives of missing persons;
(vii) Anonymous DNA profiles used for forensic validation, forensic protocol development, quality control purposes or establishment of a population statistics database for use by criminal justice agencies; and
(viii) Voluntarily submitted DNA profiles.
(2) A forensic laboratory may:
(a) Use all or part of the remainder of any biological specimen stored in the forensic laboratory for:
(i) Retesting to confirm or update the original genetic marker analysis; or
(ii) Quality control testing of new forensic methods for genetic marker analysis, provided that no personal identifying information is included.
(b) Contract with providers of services to perform a genetic marker analysis or to carry out functions on behalf of the forensic laboratory. Any provider of services who contracts with a forensic laboratory to perform a genetic marker analysis or to carry out functions on behalf of the forensic laboratory is subject to the same restrictions and requirements as the forensic laboratory.
(3) A forensic laboratory shall not use any biological specimen, DNA profile or DNA record for the purpose of identification of any medical or genetic disorder.
SECTION 14. Any person authorized to collect a biological specimen may not be held civilly or criminally liable for any act relating to the collection of a biological specimen if the person performed that act in good faith and in a reasonable manner.
SECTION 15. (1) A person convicted of a felony who otherwise meets the requirements of this section may file a postconviction petition requesting a genetic marker analysis of evidence within the possession or custody of the state which may contain genetic marker information relating to the investigation or prosecution that resulted in the judgment of conviction. If the case involves a sentence of death, the petition must include, without limitation, the date scheduled for the execution, if it has been scheduled.
(2) Such a petition must be filed with the clerk of the circuit court for the county in which the petitioner was convicted on a form prescribed by the Department of Corrections. A copy of the petition must be served by registered mail upon:
(a) The Attorney General; and
(b) The district attorney in the county in which the petitioner was convicted.
(3) A petition filed pursuant to this section must be accompanied by a declaration under penalty of perjury attesting that the information contained in the petition does not contain any material misrepresentation of fact and that the petitioner has a good faith basis relying on particular facts for the request. The petition must include, without limitation:
(a) Information identifying specific evidence either known or believed to be in the possession or custody of the state that can be subject to genetic marker analysis;
(b) The rationale for why a reasonable possibility exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through a genetic marker analysis of the evidence identified in paragraph (a) of this subsection;
(c) An identification of the type of genetic marker analysis the petitioner is requesting to be conducted on the evidence identified in paragraph (a) of this subsection;
(d) If applicable, the results of all prior genetic marker analysis performed on evidence in the trial which resulted in the petitioner's conviction; and
(e) A statement that the type of genetic marker analysis the petitioner is requesting was not available at the time of trial or, if it was available, that the failure to request genetic marker analysis before the petitioner was convicted was not a result of a strategic or tactical decision as part of the representation of the petitioner at the trial.
(4) If a petition is filed pursuant to this section, the court may:
(a) Enter an order dismissing the petition without a hearing if the court determines, based on the information contained in the petition, that the petitioner does not meet the requirements set forth in this section;
(b) After determining whether the petitioner is indigent and whether counsel was appointed in the case which resulted in the conviction, appoint counsel for the limited purpose of reviewing, supplementing and presenting the petition to the court; or
(c) Schedule a hearing on the petition. If the court schedules a hearing on the petition, the court shall determine which person or agency has possession or custody of the evidence and shall immediately issue an order requiring, during the pendency of the proceeding, each person or agency in possession or custody of the evidence to:
(i) Preserve all evidence within the possession or custody of the person or agency that may be subjected to genetic marker analysis pursuant to this section;
(ii) Within ninety (90) days, prepare an inventory of all evidence relevant to the claims in the petition within the possession or custody of the person or agency that may be subjected to genetic marker analysis pursuant to this section; and
(iii) Within ninety (90) days, submit a copy of the inventory to the petitioner, the prosecuting attorney and the court.
(5) Within ninety (90) days after the inventory of all evidence is prepared pursuant to subsection (4) of this section, the prosecuting attorney may file a written response to the petition with the court.
(6) If the court holds a hearing on a petition filed pursuant to this section, the hearing must be presided over by the judge who conducted the trial that resulted in the conviction of the petitioner, unless that judge is unavailable. Any evidence presented at the hearing by affidavit must be served on the opposing party at least fifteen (15) days before the hearing.
(7) If a petitioner files a petition pursuant to this section, the court schedules a hearing on the petition and a victim of the crime for which the petitioner was convicted has requested notice, the district attorney in the county in which the petitioner was convicted shall provide to the victim notice of:
(a) The fact that the petitioner filed a petition pursuant to this section;
(b) The time and place of the hearing scheduled by the court as a result of the petition; and
(c) The outcome of any hearing on the petition.
SECTION 16. (1) The court shall order a genetic marker analysis, after considering the information contained in the petition pursuant to subsection (3) of this section of and any other evidence, if the court finds that:
(a) A reasonable possibility exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through a genetic marker analysis of the evidence identified in the petition;
(b) The evidence to be analyzed exists; and
(c) Except as otherwise provided in subsection (2) of this section, the evidence was not previously subjected to a genetic marker analysis.
(2) If the evidence was previously subjected to a genetic marker analysis, the court shall order a genetic marker analysis pursuant to subsection (1) of this section if the court finds that:
(a) The result of the previous analysis was inconclusive;
(b) The evidence was not subjected to the type of analysis that is now requested and the requested analysis may resolve an issue not resolved by the previous analysis; or
(c) The requested analysis would provide results that are significantly more accurate and probative of the identity of the perpetrator than the previous analysis.
(3) If the court orders a genetic marker analysis pursuant to subsection (1) or (2) of this section, the court shall:
(a) Order the analysis to be conducted promptly under reasonable conditions designed to protect the interest of the state and the petitioner in the integrity of the evidence and the analysis process.
(b) Select a forensic laboratory to conduct or oversee the analysis. The forensic laboratory selected by the court must:
(i) Be operated by this state or one of its political subdivisions, when possible; and
(ii) Satisfy the standards for quality assurance that are established for forensic laboratories by the Federal Bureau of Investigation.
(c) Order the forensic laboratory selected pursuant to paragraph (b) of this subsection to perform a genetic marker analysis of evidence. The analysis to be performed and evidence to be analyzed must:
(i) Be specified in the order; and
(ii) Include such analysis, testing and comparison of genetic marker information contained in the evidence and the genetic marker information of the petitioner as the court determines appropriate under the circumstances.
(d) Order the production of any reports that are prepared by a forensic laboratory in connection with the analysis and any data and notes upon which the report is based.
(e) Order the preservation of evidence used in a genetic marker analysis performed pursuant to this section for purposes of a subsequent proceeding or analysis, if any.
(f) Order the results of the genetic marker analysis performed pursuant to this section to be sent to the State Board of Parole if the results of the genetic marker analysis are not favorable to the petitioner.
(4) If the court orders a genetic marker analysis pursuant to subsection (1) or (2), the state may appeal to the Supreme Court within thirty (30) days after the notice of the entry of the order by filing a notice of appeal with the clerk of the circuit court.
(5) The court shall enter an order dismissing a petition filed if:
(a) The requirements for ordering a genetic marker analysis pursuant to this section are not satisfied; or
(b) The results of a genetic marker analysis performed are not favorable to the petitioner.
(6) If the court enters an order dismissing a petition, the person aggrieved by the order may appeal to the Supreme Court within thirty (30) days after the notice of the entry of the order by filing a notice of appeal with the clerk of the district court.
SECTION 17. (1) The court shall order a genetic marker analysis, after considering the information contained in the petition pursuant to subsection (3) of this section of and any other evidence, if the court finds that:
(a) A reasonable possibility exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through a genetic marker analysis of the evidence identified in the petition;
(b) The evidence to be analyzed exists; and
(c) Except as otherwise provided in subsection (2) of this section, the evidence was not previously subjected to a genetic marker analysis.
(2) If the evidence was previously subjected to a genetic marker analysis, the court shall order a genetic marker analysis pursuant to subsection (1) of this section if the court finds that:
(a) The result of the previous analysis was inconclusive;
(b) The evidence was not subjected to the type of analysis that is now requested and the requested analysis may resolve an issue not resolved by the previous analysis; or
(c) The requested analysis would provide results that are significantly more accurate and probative of the identity of the perpetrator than the previous analysis.
(3) If the court orders a genetic marker analysis pursuant to subsection (1) or (2) of this section, the court shall:
(a) Order the analysis to be conducted promptly under reasonable conditions designed to protect the interest of the state and the petitioner in the integrity of the evidence and the analysis process.
(b) Select a forensic laboratory to conduct or oversee the analysis. The forensic laboratory selected by the court must:
(i) Be operated by this state or one of its political subdivisions, when possible; and
(ii) Satisfy the standards for quality assurance that are established for forensic laboratories by the Federal Bureau of Investigation.
(c) Order the forensic laboratory selected pursuant to paragraph (b) of this subsection to perform a genetic marker analysis of evidence. The analysis to be performed and evidence to be analyzed must:
(i) Be specified in the order; and
(ii) Include such analysis, testing and comparison of genetic marker information contained in the evidence and the genetic marker information of the petitioner as the court determines appropriate under the circumstances.
(d) Order the production of any reports that are prepared by a forensic laboratory in connection with the analysis and any data and notes upon which the report is based.
(e) Order the preservation of evidence used in a genetic marker analysis performed pursuant to this section and for purposes of a subsequent proceeding or analysis, if any.
(f) Order the results of the genetic marker analysis performed pursuant to this section and to be sent to the State Board of Parole if the results of the genetic marker analysis are not favorable to the petitioner.
(4) If the court orders a genetic marker analysis pursuant to subsection (1) or (2) of this section, the state may appeal to the Supreme Court within thirty (30) days after the notice of the entry of the order by filing a notice of appeal with the clerk of the circuit court.
(5) The court shall enter an order dismissing a petition filed pursuant to if:
(a) The requirements for ordering a genetic marker analysis pursuant to this section are not satisfied; or
(b) The results of a genetic marker analysis performed pursuant to this section are not favorable to the petitioner.
(6) If the court enters an order dismissing a petition, the person aggrieved by the order may appeal to the Supreme Court within thirty (30) days after the notice of the entry of the order by filing a notice of appeal with the clerk of the circuit court.
SECTION 18. (1) If the results of a genetic marker analysis performed pursuant to this section are favorable to the petitioner:
(a) The petitioner may bring a motion for a new trial based on the ground of newly discovered evidence; and
(b) The restriction on the time for filing the motion set forth in subsection (3) of this section is not applicable.
(2) For the purposes of a genetic marker analysis pursuant to this section, a person who files a petition pursuant to shall be deemed to consent to the:
(a) Submission of a biological specimen by the petitioner to determine genetic marker information; and
(b) Release and use of genetic marker information concerning the petitioner.
(3) The petitioner shall pay the cost of a genetic marker analysis performed pursuant to this section, unless the petitioner is incarcerated at the time the petitioner files the petition, found to be indigent and the results of the genetic marker analysis are favorable to the petitioner. If the petitioner is not required to pay the cost of the analysis pursuant to this subsection, the expense of an analysis ordered pursuant to this section is a charge against the Department of Corrections and must be paid upon approval by the Commissioner of the Department of Corrections as other claims against the state are paid.
(4) The remedy provided by this section and is in addition to, is not a substitute for and is not exclusive of any other remedy, right of action or proceeding available to a person convicted of a crime.
SECTION 19. (1) After a judge grants a petition requesting a genetic marker analysis, and, if the case involves a sentence of death and a judge determines that the genetic marker analysis cannot be completed before the date of the execution of the petitioner, the judge shall stay the execution of the judgment of death pending the results of the analysis.
(2) If the case involves a sentence of death and the results of an analysis ordered are not favorable to the petitioner:
(a) Except as otherwise provided in paragraph (b), the Commissioner of the Department of Corrections shall, in due course, execute the judgment of death.
(b) If the judgment of death has been stayed pursuant to subsection (1) of this section, the judge shall cause a certified copy of the order staying the execution of the judgment and a certified copy of the report of genetic marker analysis that indicates results which are not favorable to the petitioner to be immediately forwarded by the clerk of the court to the district attorney. Upon receipt, the district attorney shall pursue the issuance of a new warrant of execution of the judgment of death.
SECTION 20. Section 45-1-25, Mississippi Code of 1972, is brought forward as follows:
45-1-25. The Director of the Mississippi Crime Laboratory which has been established by the Commissioner of Public Safety under the authority of Section 45-1-17 shall be a person who is experienced in crime laboratory operations, knowledgeable of the criminal justice system, and who shall have the following minimum qualifications:
(a) Graduation from an accredited four-year college or university with major course work in forensic science, chemistry, biology, commercial science or physics.
(b) At least five (5) years' full-time employment in a crime laboratory, with supervisory or administrative responsibility.
(c) Thorough knowledge of the utilization of crime laboratory services and their relation to the investigating law enforcement officers.
(d) Thorough knowledge of techniques employed in processing of physical evidence.
(e) Membership in professional organizations promoting advancement of forensic science.
(f) Proven effectiveness as a manager and administrator.
Unusual strength in one or more of the above qualifications may compensate for failure to exactly satisfy paragraph (b) of this section.
The Director of the Crime Laboratory may only be removed by the Commissioner of Public Safety upon proof of his inability to serve due to illness, administrative or managerial ineffectiveness, incompetence, malfeasance, dereliction of duty or moral turpitude.
SECTION 21. Section 45-1-27, Mississippi Code of 1972, is brought forward 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.
SECTION 22. Section 47-5-183, Mississippi Code of 1972, is brought forward 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.
SECTION 23. Section 99-49-1, Mississippi Code of 1972, is brought forward 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.
SECTION 24. This act shall take effect and be in force from and after July 1, 2014.