TWENTY-EIGHTH LEGISLATURE, 2015
STATE OF HAWAII
A BILL FOR AN ACT
relating to the retention of biological evidence.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 844D-126, Hawaii Revised Statutes, is amended to read as follows:
Retention of biological evidence. (a) All evidence in the custody or
control of [ a] an evidence custodian, including a police
department, prosecuting attorney, laboratory, or court [ that is],
shall be retained if the evidence:
(1) Is related to the investigation or
prosecution of a case in which there has been a judgment of conviction [
that may] for:
(D) Sexual assault in the first degree;
(E) Sexual assault in the second degree;
(F) Assault in the first degree; or
(G) An attempt or criminal conspiracy to commit one of the offenses listed above; and
(2) Has been determined to contain biological
evidence that could reasonably be used for DNA analysis [
retained] to do the following:
(A) Establish the identity of the person who committed the offense for which a defendant was convicted; or
(B) Exclude a person from the group of persons who could have committed the offense for which a defendant was convicted.
(b) The evidence shall be retained at least until the later occurring of either:
(1) The exhaustion of all appeals of the case to which the evidence is related; or
(2) The completion of any sentence, including any term of probation or parole, imposed on the defendant in the case to which the evidence relates.
(b) The attorney general shall establish
procedures and protocols, which shall be uniform throughout the State, for the
collection and preservation of evidence retained pursuant to this section.]
(c) An evidence custodian may dispose of evidence retained pursuant to the requirements of subsections (a) and (b) before the expiration of the time period specified in subsection (b) if:
(1) The court grants a motion for disposal of evidence, filed by the prosecuting attorney before sentencing and scheduled to be heard by the court immediately after sentencing or any time thereafter; or
(2) The prosecuting attorney or evidence custodian files a notification of proposed disposal of the evidence with the court, and either the defendant does not file a statement of objection to the notification or the court, after a hearing pursuant to subsection (f), allows the disposal of the evidence.
(d) The filed notification of proposed disposal of the evidence shall be served upon:
(1) The defendant against whom the judgment of conviction was filed, by actual personal service or at the defendant's last known address after a reasonable documented good faith attempt for personal service was unsuccessful;
(2) The defendant's parole officer or probation officer, if the defendant continues to be under parole or probation supervision and service could not be made upon the defendant by actual personal service; and
(3) The defendant's attorney of record or the public defender if the defendant's attorney of record is unavailable.
(e) The filed notification of proposed disposal of the evidence shall include:
(1) A description of the evidence proposed to be disposed;
(2) Notice that the defendant may file a written statement of objection with the court within ninety days of the date of receipt of the notification; and
(3) Notice that the evidence custodian will dispose of the evidence unless the defendant files a statement of objection with the court and serves the statement of objection on the evidence custodian and prosecuting attorney within the ninety-day period.
(f) If a defendant files an objection to the notification of proposed disposal with the court, the court shall schedule a hearing on the objection and notify the evidence custodian and the agency that prosecuted the case of the hearing.
(g) If, after a hearing on a notification of proposed disposal of the evidence or a hearing on a motion for disposal of evidence, the court determines by a preponderance of the evidence that either:
(1) The identity of the defendant, as the perpetrator of the offense that resulted in the judgment of conviction, was not a contested issue in the case; or
(2) The evidence could not reasonably be used for DNA analysis to:
(A) Establish the identity of the person who committed the offense for which the defendant was convicted; or
(B) Exclude a person from the group of persons who could have committed the offense for which the defendant was convicted,
then the court may allow the evidence custodian to dispose of the evidence.
(h) As used in this section, "biological evidence" means an individual's blood, semen, hair, saliva, skin tissue, fingernail scrapings, teeth, bone, bodily fluids, or other identifiable biological material including contents of a sexual assault examination kit."
SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
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.
Retention of Biological Evidence
Amends the guidelines and limitations for the post-conviction retention of biological evidence by evidence custodians. Establishes a process for judicial supervision of early disposal of biological evidence.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.