SB-1549, As Passed House, December 19, 2008

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 1549

A bill to amend 1990 PA 250, entitled

"DNA identification profiling system act,"

by amending sections 2 and 6 (MCL 28.172 and 28.176), section 2 as

amended by 2001 PA 88 and section 6 as amended by 2003 PA 76, and

by adding section 5.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 2. As used in this act:

(a) "Department" means the department of state police.

(b) "DNA identification profile" or "profile" means the

results of the DNA identification profiling of a sample, including

a paper, electronic, or digital record.

scientific method of analyzing components of deoxyribonucleic acid

molecules in a biological specimen to determine a match or a

nonmatch between a reference sample and an evidentiary sample.

(d) "Felony" means a violation of a penal law of this state

for which the offender may be punished by imprisonment for more

than 1 year or an offense expressly designated by law to be a

felony.

(e) "Investigating law enforcement agency" means the law

enforcement agency responsible for the investigation of the offense

for which the individual is convicted. Investigating law

enforcement agency includes the county sheriff but does not include

a probation officer employed by the department of corrections.

(f) "Sample" means a portion of an individual's blood, saliva,

or tissue collected from the individual.

Sec. 5. (1) An individual shall not disseminate, receive, or

otherwise use or attempt to use information in the DNA

identification profile record knowing that the dissemination,

receipt, or use of that information is for a purpose not authorized

by law. An individual who violates this subsection is guilty of a

misdemeanor punishable by imprisonment for not more than 1 year or

a fine of not more than $ 1,000.00, or both.

(2) An individual shall not willfully remove, destroy, tamper

with, or attempt to tamper with a DNA sample, record, or other DNA

information obtained or retained under this act without lawful

authority. An individual who violates this subsection is guilty of

a misdemeanor punishable by imprisonment for not more than 1 year

or a fine of not more than $1,000.00, or both.

Sec. 6. (1) The department shall permanently retain a DNA

identification profile of an individual obtained from a sample in

the manner prescribed by the department under this act if any of

the following apply:

(a) The individual is found responsible for a violation of

section 83, 91, 316, 317, or 321 of the Michigan penal code, 1931

PA 328, MCL 750.83, 750.91, 750.316, 750.317, and 750.321, or a

violation or attempted violation of section 349, 520b, 520c, 520d,

520e, or 520g of the Michigan penal code, 1931 PA 328, MCL 750.349,

750.520b, 750.520c, 750.520d, 750.520e, and 750.520g, or a

violation of section 167(1)(c) or (f) or 335a of the Michigan penal

code, 1931 PA 328, MCL 750.167 and 750.335a, or a local ordinance

substantially corresponding to section 167(1)(c) or (f) or 335a of

the Michigan penal code, 1931 PA 328, MCL 750.167 and 750.335a.

(b) The individual is convicted of a felony or attempted

felony, or any of the following misdemeanors, or local ordinances

that are substantially corresponding to the following misdemeanors:

(i) A violation of section 145a of the Michigan penal code,

1931 PA 328, MCL 750.145a, enticing a child for immoral purposes.

(ii) A violation of section 167(1)(c), (f), or (i) of the

Michigan penal code, 1931 PA 328, MCL 750.167, disorderly person by

window peeping, engaging in indecent or obscene conduct in public,

or loitering in a house of ill fame or prostitution.

(iii) A violation of section 335a of the Michigan penal code,

1931 PA 328, MCL 750.335a, indecent exposure.

(iv) A violation of section 451 of the Michigan penal code,

1931 PA 328, MCL 750.451, first and second prostitution violations.

(v) A violation of section 454 of the Michigan penal code,

1931 PA 328, MCL 750.454, leasing a house for purposes of

prostitution.

(vi) A violation of section 462 of the Michigan penal code,

1931 PA 328, MCL 750.462, female under the age of 17 in a house of

prostitution.

(2) The DNA profiles of DNA samples received under this

section shall only be disclosed as follows:

(a) To a criminal justice agency for law enforcement

identification purposes.

(b) In a judicial proceeding as authorized or required by a

court.

used in conjunction with a charge against the defendant.

(d) For an academic, research, statistical analysis, or

protocol developmental purpose only if personal identifications are

removed.

(3) Notwithstanding subsection (1), if at the time the

individual is convicted of or found responsible for the violation

the investigating law enforcement agency or the department of state

police already has a sample from the individual that meets the

requirements of this act, the individual is not required to provide

another sample or pay the fee required under subsection (5).

(4) The county sheriff or the investigating law enforcement

agency as ordered by the court shall provide for collecting the

samples required to be provided under subsection (1) in a medically

approved manner by qualified persons using supplies provided by the

department of state police and shall forward those samples and any

samples described in subsection (1) that were already in the

agency's possession to the department of state police. The

collecting and forwarding of samples shall be done in the manner

required under this act. A sample shall be collected by the county

sheriff or the investigating law enforcement agency after

conviction or a finding of responsibility but before sentencing or

disposition as ordered by the court and promptly transmitted to the

department of state police. This subsection does not preclude a law

enforcement agency or state agency from obtaining a sample at or

after sentencing or disposition.

(5) Until October 1, 2003, the court shall order each

individual found responsible for or convicted of 1 or more crimes

listed in subsection (1) to pay an assessment of $60.00. The

assessment required under this subsection is in addition to any

fine, costs, or other assessments imposed by the court.

(6) An assessment required under subsection (5) shall be

ordered upon the record and shall be listed separately in the

adjudication order, judgment of sentence, or order of probation.

(7) After reviewing a verified petition by an individual

against whom an assessment is imposed under subsection (5), the

court may suspend payment of all or part of the assessment if it

determines the individual is unable to pay the assessment.

(8) The court that imposes the assessment prescribed under

subsection (5) may retain 10% of all assessments or portions of

assessments collected for costs incurred under this section and

shall transmit that money to its funding unit. On the last day of

each month, the clerk of the court shall transmit the assessments

or portions of assessments collected under this section as follows:

(a) Twenty-five percent to the county sheriff or other

investigating law enforcement agency that collected the DNA sample

as designated by the court to defray the costs of collecting DNA

samples.

(b) Until October 1, 2003, 65% to the department of treasury

for the department's forensic science division to defray the costs

associated with the requirements of DNA profiling and DNA retention

prescribed under this act.

deposit in the justice system fund created in section 181 of the

revised judicature act of 1961, 1961 PA 236, MCL 600.181.

(9) Beginning December 31, 2002, the director of the

department shall report by December 31 of each year concerning the

rate of DNA sample collection, DNA identification profiling,

retention and compilation of DNA identification profiles, and the

collection of assessments required under subsection (5) to all of

the following:

(a) The standing committees of the senate and house of

representatives concerned with DNA sample collection and retention.

(b) The house of representatives appropriations subcommittee

on state police and military affairs.

(10) If a sample was collected under subsection (1) from an

individual who does not have more than 1 conviction, and that

conviction was reversed by an appellate court, the individual may

petition the sentencing court to order the disposing of the sample

collected and DNA identification profile record for that conviction

in the manner provided in subsections ~~(12) and~~ (13) and (14). The

sentencing court shall only enter the order upon a finding that the

individual has proven by clear and convincing evidence that the

conviction was reversed based upon the great weight of the

evidence, specifically, that there was overwhelming evidence

against the verdict resulting in a miscarriage of justice.

(11) Any other DNA identification profile obtained by the

department shall not be permanently retained by the department but

shall be retained only as long as it is needed for a criminal

investigation or criminal prosecution. Except as provided in

subsection (12), the state police forensic laboratory shall dispose

of a DNA sample collected under subsection (1) or a DNA

identification profile, or both, if any of the following

circumstances occur:

(a) The department receives a written request for disposal

from the investigating police agency or prosecutor indicating that

the sample or profile is no longer necessary for a criminal

investigation or criminal prosecution.

(b) The department receives a written request for disposal and

a certified copy of a final court order establishing that the

charge for which the sample was obtained has been dismissed or has

resulted in an acquittal or that no charge was filed within the

applicable limitations period.

(12) Subsection (11) does not apply if either of the following

circumstances exists:

(a) The department determines that the individual from whom

the sample is taken has otherwise become obligated to submit a

sample.

(b) Subsection (16) applies.

(13) ~~(12) If the state police forensic laboratory determines~~

~~after analysis that a sample has been submitted by an individual~~

~~who has been eliminated as a suspect in a crime, the~~ The state

police forensic laboratory shall dispose of ~~the~~ a sample and ~~the~~ a

DNA identification profile record in the following manner:

(a) The laboratory shall dispose of the sample in compliance

with section 13811 of the public health code, 1978 PA 368, MCL

333.13811.

(b) The laboratory shall dispose of the sample and the DNA

identification profile record in the presence of a witness.

(14) ~~(13)~~ After disposal in accordance with subsection ~~(12)~~

(13), the laboratory shall make and keep a written record of the

disposal, signed by the individual who witnessed the disposal.

(15) An identification, warrant, detention, probable cause to

arrest, arrest, or conviction based upon a DNA match or DNA

information is not invalidated if it is later determined that 1 or

more of the following errors occurred in good faith:

(a) A DNA sample was erroneously obtained.

(b) A DNA identification profile was erroneously retained.

disposing of the sample.

(d) A DNA identification profile was not disposed of or there

was a delay in disposing of the profile.

(16) Notwithstanding any other provision of this act, the

department is not required to dispose of physical evidence or data

obtained from a sample if evidence relating to an individual other