HOUSE BILL No. 5323

 

 

December 6, 2017, Introduced by Rep. Lucido and referred to the Committee on Law and Justice.

 

     A bill to amend 1990 PA 250, entitled

 

"DNA identification profiling system act,"

 

by amending section 6 (MCL 28.176), as amended by 2014 PA 457.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 6. (1) Except as otherwise provided in this section, 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 arrested for committing or attempting to

 

commit a felony offense or an offense that would be a felony

 

offense if committed by an adult.

 

     (b) The individual is convicted of or found responsible for 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 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.

 

     (ii) A violation of section 335a(1) of the Michigan penal

 

code, 1931 PA 328, MCL 750.335a, indecent exposure.

 

     (iii) A violation punishable under section 451(1) or (2) of

 

the Michigan penal code, 1931 PA 328, MCL 750.451, first and second

 

prostitution violations.

 

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

 

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

 

prostitution.

 

     (2) The DNA identification profiles of DNA samples received

 

under this act shall must 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.

 

     (c) To a defendant in a criminal case if the DNA

 

identification profile is 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 arrested, convicted of, or found responsible for the

 

violation the investigating law enforcement agency or the

 

department 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 assessment 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 and shall forward those samples and any samples

 

described in subsection (1) that were already in the agency's

 

possession to the department after the individual from whom the

 

sample was taken has been arraigned in the district court. However,

 

the individual's DNA sample shall must not be forwarded to the

 

department if the individual is not charged with committing or

 

attempting to commit a felony offense or an offense that would be a

 

felony if committed by an adult. If the individual's DNA sample is

 

forwarded to the department despite the individual not having been

 

charged as described in this subsection, the law enforcement agency

 

shall notify the department to destroy that sample. The collecting

 

and forwarding of samples shall must be done in the manner required

 

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

 

sheriff or the investigating law enforcement agency after arrest

 

but before sentencing or disposition as ordered by the court and

 

promptly transmitted to the department of state police after the

 

individual is charged with committing or attempting to commit a

 

felony offense or an offense that would be a felony if committed by


an adult. This subsection does not preclude a law enforcement

 

agency or state agency from obtaining a sample at or after

 

sentencing or disposition. At the time a DNA sample is taken from

 

an individual under this section, the individual shall must be

 

notified in writing of all of the following:

 

     (a) That, except as otherwise provided by law, the

 

individual's DNA sample or DNA identification profile, or both,

 

shall must be destroyed or expunged, as appropriate, if the charge

 

for which the sample was obtained has been dismissed or resulted in

 

acquittal, or no charge was filed within the limitations period.

 

     (b) That the individual's DNA sample or DNA identification

 

profile, or both, will not be destroyed or expunged, as

 

appropriate, if the department determines that the individual from

 

whom the sample is taken is otherwise obligated to submit a sample

 

or if it is evidence relating to another individual that would

 

otherwise be retained under this section.

 

     (c) That the burden is on the arresting law enforcement agency

 

and the prosecution to request the destruction or expunction of a

 

DNA sample or DNA identification profile as required under this

 

section, not on the individual.

 

     (5) 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 must be

 

ordered upon on the record and shall must 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) Sixty-five percent to the state treasurer for deposit in

 

the justice system fund created in section 181 of the revised

 

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

 

     (9) 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.

 

     (c) The senate appropriations subcommittee on state police.

 

     (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 sentencing court

 

shall order the disposal of the sample collected and DNA

 

identification profile record for that conviction in the manner

 

provided in subsections (13) and (14).

 

     (11) Any other DNA identification profile obtained by the

 

department shall must not be permanently retained by the department

 

but shall must 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.

 

     (c) The department receives a certified copy of a court order

 

entered under section 26a of chapter IV of the code of criminal


procedure, 1927 PA 175, MCL 764.26a.

 

     (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) The state police forensic laboratory shall dispose of a

 

sample and a DNA identification profile record in the following

 

manner:

 

     (a) Not more than 60 days after the department receives notice

 

under subsection (11), 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) After disposal in accordance with subsection (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.

 

     (c) A DNA sample was not disposed of or there was a delay in

 

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

 

than the individual from whom the sample was taken would be

 

destroyed and the evidence or data relating to the other individual

 

would otherwise be retained under this section.

 

     (17) The department shall send written notice to the

 

requesting law enforcement agency, court, or prosecutor when the

 

individual's DNA sample or DNA identification profile has been

 

destroyed under this act.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.

 

     Enacting section 2. This amendatory act does not take effect

 

unless all of the following bills of the 99th Legislature are

 

enacted into law:

 

     (a) House Bill No. 4536.

 

     (b) House Bill No. 4537.

 

     (c) House Bill No. 4538.