June 8, 2005, Introduced by Senators McMANUS, GEORGE, JOHNSON and ALLEN and referred to the Committee on Judiciary.
A bill to amend 1990 PA 250, entitled
"DNA identification profiling system act,"
by amending the title and sections 3a and 6 (MCL 28.173a and
28.176), the title as amended by 1998 PA 522, section 3a as added
by 2001 PA 88, and section 6 as amended by 2003 PA 76.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An act to provide for a DNA identification profiling system;
to provide for the collection of samples from certain prisoners,
convicted
offenders, and juvenile offenders certain
juveniles, and
certain other individuals and the analysis of those samples; to
prohibit certain conduct and prescribe penalties; and to prescribe
the powers and duties of certain state departments and county
agencies.
Sec.
3a. (1) An individual required by law to provide
samples for DNA identification profiling who refuses to provide or
resists providing those samples 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. The individual shall be advised
that his or her resistance or refusal to provide samples described
in
this subsection section is a misdemeanor.
(2)
If at the time an individual who is required by law to
provide
samples for DNA identification profiling is convicted the
investigating
law enforcement agency or the department already has
a
sample from the individual that meets the requirements of the
rules
promulgated under this act, the individual is not required to
provide
another sample.
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 court authorizes the
filing of a petition 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 bound over for trial for
a
felony or attempted felony. , or
(c) The individual is arraigned on a charge of any of the
following
misdemeanors , or
local ordinances that are
substantially corresponding
correspond 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.
(c) To a defendant in a criminal case if the DNA 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 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 under subsection (1) 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) required
to provide a DNA sample under
this section 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.
(c) Beginning October 1, 2003, 65% 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) 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.
(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, and the individual
is not awaiting trial on a crime described in subsection (1), 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). 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.
(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 laboratory shall
dispose of the sample and the 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.
(13) After disposal in accordance with subsection (12), the
laboratory shall make and keep a written record of the disposal,
signed by the individual who witnessed the disposal.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted.