Report Title:

DNA registry

Description:

Mandates that all defendants to provide DNA samples for the state DNA registry.

HOUSE OF REPRESENTATIVES

H.B. NO.

2754

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to DNA registry.

 

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

SECTION 1. The legislature finds that advances in technology have allowed law enforcement agencies to use deoxyribonucleic acid, or DNA, samples found at crime scenes to assist in identifying perpetrators of criminal offenses, especially repeat offenders. In studies conducted in Virginia and Great Britain, as many as half of the criminals that committed violent crimes had non-violent criminal histories. Thus, if offenders convicted of non-violent crimes are required to give a sample of DNA as part of the DNA criminal registry, those that repeat offend can be more readily identified if they commit a violent crime.

The legislature also finds that expanding DNA database requirements help prevent crimes. An offender that is not apprehended in a timely manner remains free to commit more crimes. For example, according to the U.S. Department of Justice, the average rapist commits 8-12 sexual assaults. If law enforcement were able to apprehend the rapist after the first sexual assault, a minimum of 7 rapes could be prevented per offender. When as many as half of all violent offenders have non-violent criminal histories, it becomes obvious how powerful a law enforcement tool expanded DNA registry requirements are.

The legislature also finds that this technology has also been used to exonerate wrongfully convicted people. With an expanded DNA database, chances are better that evidence could be processed that would identify the correct perpetrator of an offense. As powerful a law enforcement tool as this could be, restoring the freedom of a wrongfully accused and prosecuted person would represent a dramatic and needed improvement to our criminal justice system.

The legislature further finds that since 1998, further advances in DNA technology have been made. In 1998, the State Legislature passed Act 271, which amended Hawaii Revised Statutes section 706-603 to require defendants convicted of sexual or violent offenses to provide blood samples for DNA analysis. Since then, the collection of blood samples for purposes of DNA testing has been on the decline. Buccal swab testing is swiftly becoming the test of choice because of the less invasive nature of the test when compared to a blood draw. With a buccal swab test, DNA samples are collected by gently rubbing the cheeks inside of the mouth with long swabs similar to Q-Tips. Using the same DNA tests for blood samples, buccal swap specimens are not affected by bacteria, toothpaste, tobacco products, mother's milk, or lipstick, nor is any fasting required prior to a test.

The legislature further finds that Congress is poised to enact President Bush's DNA initiative, which authorizes over one billion dollars to expand state DNA programs. Federal funds would flow from this legislation to assist with offenders from which Hawaii is authorized by law to collect DNA. Currently, state law allows for collection from a limited amount of convicted felons. The purpose of this Act is to provide for the collection of DNA samples from all convicted felons and to provide for the use of buccal swab testing as an option in collecting DNA samples.

SECTION 2. Section 706-603, Hawaii Revised Statutes, is amended to read as follows:

"706-603 Mental and medical examination; deoxyribonucleic acid collection. (1) As used in this section, unless the context otherwise requires:

"Conviction" means that a verdict has been rendered by a judge or jury, or a plea of guilty or nolo contendere has been accepted by the court.

"Defendant" means the same as defined in section 701-118 and shall include juvenile defendants.

"DNA" means deoxyribonucleic acid.

"Licensed psychologist" means psychologists licensed under chapter 465 but also includes psychologists exempt from licensure under section 465-3(a)(3).

["Sexual offense" means an offense as defined in chapter 846E as a sexually violent offense or a criminal offense against a victim who is a minor.

"Violent offense" means murder, or attempted murder, in any degree.]

(2) Before imposing sentence, the court may order a defendant who has been convicted of a felony or misdemeanor to submit to mental or other medical observation and examination for a period not exceeding sixty days or a longer period, not to exceed the length of permissible imprisonment, as the court determines to be necessary for the purpose. In addition thereto or in the alternative, the court may appoint one or more qualified psychiatrists, physicians, or licensed psychologists to make the examination. The examiner or examiners shall be appointed from a list of certified examiners as determined by the state department of health. The report of the examination shall be submitted to the court.

(3) After entry of a plea of guilty or no contest or return of a verdict of guilty, a defendant who has been convicted of [a sexual or violent] an offense shall provide either two samples of blood or DNA samples collected by buccal swab for DNA analysis.

(4) A defendant who has been convicted of [a sexual or violent] an offense and who is in custody at a jail, prison, hospital, school, or other institution shall provide either two samples of blood or DNA samples collected by buccal swab for DNA analysis. The person in charge of such an institution, or that person's designee, shall arrange for the sample to be collected and analyzed.

(5) A defendant who has been convicted of [a sexual or violent] an offense and who is not in custody shall report in person to any police station in the county in which the defendant resides or is present to schedule an appointment to provide either two samples of blood or DNA samples collected by buccal swab for DNA analysis. A defendant required to report to a police station under this subsection shall do so within:

[(a) Thirty days of July 20, 1998;

(b)] (a) Thirty days of conviction; or

[(c)] (b) Thirty days after arrival in this State, if the defendant expects to be present in this State for a period exceeding thirty days.

(6) A defendant who has been charged with [a sexual or violent] an offense and who has been found unfit to proceed or acquitted pursuant to chapter 704, or any state, federal, or military law similar to chapter 704 shall provide either two samples of blood or DNA samples collected by buccal swab for DNA analysis. The person in charge of the jail, prison, hospital, school, or other institution where the defendant is in custody, or that person's designee, shall arrange for the sample to be collected and analyzed. A defendant who is not in custody and who is required to provide either blood or DNA samples collected by buccal swab under this subsection shall report in person to any police station in the county in which the defendant resides or is present to schedule an appointment to provide two samples of blood or DNA samples collected by buccal swab. A defendant required to report to a police station under this subsection shall do so within:

[(a) Thirty days of July 20, 1998;

(b)] (a) Thirty days of the release following an acquittal or finding of unfitness to proceed under chapter 704; or any state, federal, or military law similar to chapter 704; or

[(c)] (b) Thirty days after arrival in the State,

if the defendant resides or expects to be present in the State for a period exceeding thirty days.

(7) Blood withdrawn pursuant to this section shall be withdrawn only by a person authorized to withdraw blood under section 291E-12. The results shall be recorded, preserved, and disseminated in a manner consistent with the requirements of chapter 846. A defendant who has already provided the necessary samples of blood pursuant to this section shall be relieved of any further requirement to provide blood for DNA analysis, unless the court orders otherwise. The director of public safety shall adopt rules, pursuant to chapter 91, relating to the qualifications and authorization of persons allowed to collect buccal swab samples under this section.

(8) In addition to any disposition authorized by chapter 706 or 853, a defendant convicted of [a sexual or violent] an offense after July 20, 1998 may be ordered to pay a monetary assessment of $500 or the actual cost of the DNA analysis, whichever is less. The court shall not order the defendant to pay the monetary assessment unless the defendant is or will be able to pay the monetary assessment. Notwithstanding any other law to the contrary, the assessment provided by this section shall be in addition to, and not in lieu of, and shall not be used to offset or reduce, any fine authorized or required by law. All assessments shall be paid into the DNA registry special fund established in subsection (9).

(9) There is established a special fund to be known as the DNA registry special fund which shall be administered by the attorney general. The fund shall consist of:

(a) All assessments ordered pursuant to subsection (8);

(b) All other moneys received by the fund from any other source; and

(c) Interest earned on any moneys in the fund.

Moneys in the DNA registry special fund shall be used for DNA collection, DNA testing, and related costs of recording, preserving, and disseminating DNA information pursuant to this section.

(10) Restitution to the victim of a [sexual or violent] crime shall be made before payment of the monetary assessment.

(11) Any person required to provide blood or buccal swab samples under this section who negligently or recklessly fails to comply shall be guilty of a misdemeanor; and any person who intentionally or knowingly fails to provide blood or buccal swab samples under this section shall be guilty of a class C felony."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

 

 

INTRODUCED BY:

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