SENATE BILL No. 575

 

 

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.