[TRULY=20 AGREED TO AND FINALLY PASSED]
HOUSE = SUBSTITUTE=20 FOR
HOUSE = COMMITTEE SUBSTITUTE=20 FOR
SENATE = SUBSTITUTE=20 FOR
SENATE BILL NO. 1000
92ND GENERAL=20 ASSEMBLY
2004
3639S.19T
AN=20
ACT
To repeal sections 650.050, 650.052, = 650.055,=20 and 650.100, RSMo, and to enact in lieu thereof five new sections = relating to a=20 DNA profiling system, with penalty provisions and an effective date for = certain=20 sections.
Be it enacted by the =
General=20
Assembly of the State of Missouri, as follows:=20
Section A. Sections 650.050, 650.052, = 650.055,=20 and 650.100, RSMo, are repealed and five new sections enacted in lieu = thereof,=20 to be known as sections 488.5400, 650.050, 650.052, 650.055, and = 650.100, to=20 read as follows:
488.5400. 1. In addition to = any other=20 surcharges authorized by statute, the clerk of each court of this state = shall=20 collect the surcharges provided for in subsection 2 of this=20 section.
2. A surcharge of thirty = dollars shall=20 be assessed as costs in each circuit court proceeding filed within this = state in=20 all criminal cases in which the defendant pleads guilty or nolo = contendere to or=20 is convicted of a felony. A surcharge of fifteen dollars shall be = assessed as=20 costs in each court proceeding filed within this state in all criminal = cases in=20 which the defendant pleads guilty or nolo contendere to or is convicted = of a=20 misdemeanor.
3. Notwithstanding any other = provisions=20 of law, the moneys collected by clerks of the courts pursuant to the = provisions=20 of subsection 1 of this section shall be collected and disbursed in = accordance=20 with section 488.010 to 488.020, and shall be payable to the state=20 treasurer.
4. The state treasurer shall = deposit=20 such moneys or other gifts, grants, or monies received on a monthly = basis into=20 the DNA profiling analysis fund, which is hereby created in the state = treasury.=20 The fund shall be administered by the department of public safety. The = moneys=20 deposited into the DNA profiling analysis fund shall be used only for = DNA=20 profiling analysis of convicted offender samples performed to fulfill = the=20 purposes of the DNA profiling system pursuant to section 650.052,=20 RSMo.
5. The provisions of = subsection 1 and 2=20 of this section shall expire on August 28, 2006.
650.050. 1. The Missouri department of = public=20 safety shall develop and establish a "DNA Profiling System", referred to = in=20 sections 650.050 to 650.057 as the system to [support = criminal=20 justice services in the local communities throughout this state in DNA=20 identification] assist federal, state, and = local=20 criminal justice and law enforcement agencies in the identification,=20 investigation, and prosecution of individuals as well as the = identification of=20 missing or unidentified persons. This=20 [establishment] DNA profiling=20 system shall [be accomplished through = consultation=20 with the Kansas City, Missouri regional crime laboratory, Missouri state = highway=20 patrol crime laboratory, St. Louis, Missouri metropolitan crime = laboratory, St.=20 Louis county crime laboratory, southeast Missouri regional crime = laboratory,=20 Springfield regional crime laboratory, and the Missouri Southern State = College=20 police academy regional crime lab] consist of = qualified=20 Missouri forensic laboratories approved by the Federal Bureau of = Investigation.=20 Missouri state highway patrol crime laboratory shall be the = administrator of the=20 state's DNA index system.
2. The DNA profiling system as = established in=20 this section shall be compatible with that used by the Federal Bureau of = Investigation to ensure that DNA records are fully exchangeable between = DNA=20 laboratories and that quality assurance standards issued by the director = of the=20 Federal Bureau of Investigations are applied and performed.
650.052. 1. The state's DNA profiling = system=20 shall:
(1) Assist federal, state and local = criminal=20 justice and law enforcement agencies in the=20 [putative] identification, detection = or=20 exclusion of individuals who are subjects of the investigation or = prosecution of=20 [violent or sex-related crime]=20 criminal offenses in which biological evidence is = recovered=20 [from the crime scene] or=20 obtained; and
(2) If personally identifiable = information is removed, support development of forensic = validation studies, forensic protocols, and the establishment and = maintenance=20 of a population statistics database, [when = personal=20 identifying information is removed] for = federal, state,=20 or local crime laboratories of law enforcement agencies; = and
(3) [Support = identification=20 research and protocol development of forensic DNA analysis methods;=20 and
(4) For quality control purposes; = or
(5)] Assist in the = recovery or=20 identification of human remains from mass disasters, or for other = humanitarian=20 purposes, including identification of = [living]=20 missing persons.
2. The Missouri state highway patrol = shall act=20 as the central repository for the DNA profiling system and shall=20 [coordinate with the Federal Bureau of Investigation on = the=20 national database program] collaborate with the = Federal=20 Bureau of Investigation and other criminal justice agencies relating to = the=20 state's participation in CODIS and the National DNA Index System or in = any DNA=20 database.
3. The Missouri state highway patrol = may=20 promulgate rules and regulations to implement the provisions of = sections=20 650.050 to 650.100 in accordance with Federal Bureau of = Investigation=20 recommendations for the form and manner of collection of blood or other=20 scientifically accepted biological samples and other procedures for the=20 operation of sections 650.050 to 650.057. No rule or portion of a rule=20 promulgated pursuant to the authority of this section shall become = effective=20 unless it has been promulgated pursuant to the provisions of section = 536.024,=20 RSMo.
4. The Missouri state highway patrol = shall=20 provide the necessary components for collection of the convicted = offender's=20 biological samples. For qualified offenders as defined by = section=20 650.055 who are under custody and control of the department of = corrections, the=20 DNA sample collection shall be performed by the department of = corrections and=20 the division of probation and parole, or their authorized designee or = contracted=20 third party. For qualified offenders as defined by section 650.055 who = are under=20 custody and control of a county jail, the DNA sample collections shall = be=20 performed by the county jail or its authorized designee or contracted = third=20 party. The specimens shall thereafter be forwarded to the = Missouri=20 state highway patrol crime laboratory. Any DNA profiling = analysis or=20 collection of DNA samples by the state or any county performed pursuant = to=20 sections 650.050 to 650.100 shall be subject to=20 appropriations.
5. The state's = participating=20 forensic DNA laboratories shall meet quality assurance standards = specified by=20 the Missouri state highway patrol crime laboratory and = the=20 Federal Bureau of Investigation to ensure quality DNA identification = records=20 submitted to the central repository.
6. The state's = participating=20 forensic DNA laboratories may provide the system for identification = purposes to=20 criminal justice, law enforcement officials and prosecutors in the = preparation=20 and utilization of DNA evidence for presentation in court and provide = expert=20 testimony in court on DNA evidentiary issues.
7. The department of public = safety shall=20 have the authority to promulgate rules and regulations to carry out the=20 provisions of sections 650.050 to 650.100. Any rule or portion of a = rule, as=20 that term is defined in section 536.010, RSMo, that is created under the = authority delegated in this section shall become effective only if it = complies=20 with and is subject to all of the provisions of chapter 536, RSMo, and, = if=20 applicable, section 536.028, RSMo. This section and chapter 536, RSMo, = are=20 nonseverable and if any of the powers vested with the general assembly = pursuant=20 to chapter 536, RSMo, to review, to delay the effective date, or to = disapprove=20 and annul a rule are subsequently held unconstitutional, then the grant = of=20 rulemaking authority and any rule proposed or adopted after August 28, = 2004,=20 shall be invalid and void.
650.055. 1. Every individual = who pleads=20 guilty or nolo contendere to or is convicted in a Missouri = circuit=20 court, of a felony[, defined as a violent offense under = chapter=20 565, RSMo,] or [as a = sex]=20 any offense under chapter 566, RSMo,=20 [excluding sections 566.010 and 566.020, RSMo,] = or has=20 been determined beyond a reasonable doubt to be a sexually violent = predator=20 pursuant to 632.480 to 632.513, RSMo, shall have a blood or=20 scientifically accepted biological sample collected for purposes of DNA=20 profiling analysis:
(1) Upon entering the department of=20 [correction's] = corrections=20 reception and diagnostic centers; or
(2) Before release from a county jail = or=20 detention facility, state correctional facility or any other = detention=20 facility or institution, or any mental health facility if committed as a = sexually violent predator pursuant to sections 632.480 to 632.513,=20 RSMo; or
(3) When the state accepts a = person from=20 another state under any interstate compact, or under any other = reciprocal=20 agreement with any county, state, or federal agency, or any other = provision of=20 law, whether or not the person is confined or released, the acceptance = is=20 conditional on the person providing a DNA sample if the person was = convicted of,=20 pleaded guilty to, or pleaded nolo contendere to an offense in any other = jurisdiction which would be considered a qualifying offense as defined = in this=20 section if committed in this state, or if the person was convicted of, = pleaded=20 guilty to, or pleaded nolo contendere to any equivalent offense in any = other=20 jurisdiction; or
(4) If such = individual is under=20 the jurisdiction of the department of corrections [on = or after=20 August 28, 1996]. Such jurisdiction includes persons = currently=20 incarcerated, persons on probation, as defined in section 217.650, RSMo, = and on=20 parole, as also defined in section 217.650, RSMo.
2. The Missouri state highway patrol = and=20 department of corrections shall be responsible for ensuring adherence to = the=20 law. Any person required to provide a DNA sample pursuant to this = section shall=20 be required to provide such sample, without the right of refusal, at a=20 collection site designated by the Missouri state highway patrol and the=20 department of corrections. Authorized personnel collecting or assisting = in the=20 collection of samples shall not be liable in any civil or criminal = action when=20 the act is performed in a reasonable manner. Such force may be used as = necessary=20 to the effectual carrying out and application of such processes and = operations.=20 The enforcement of these provisions by the authorities in charge of = state=20 correctional institutions and others having custody=20 [of] or jurisdiction = over=20 those who have been convicted of=20 [the], pleaded guilty to, or pleaded = nolo=20 contendere to felony offenses which shall not be set = aside or=20 reversed, is hereby made mandatory. The board of probation or = parole=20 shall recommend that an individual who refuses to provide a DNA sample = have his=20 or her probation or parole revoked. In the event that a person's DNA = sample is=20 not adequate for any reason, the person shall provide another sample for = analysis.
3. The procedure and rules for the = collection,=20 analysis, storage, expungement, use of DNA database records and privacy = concerns=20 shall not conflict with procedures and rules applicable to the Missouri = DNA=20 profiling system and the Federal Bureau of Investigation's DNA data bank = system.=20
4. Unauthorized uses or dissemination = of=20 individually identifiable DNA information in a database for purposes = other than=20 criminal justice or law enforcement is a class A misdemeanor.
5. Implementation of section 650.050 = and this=20 section shall be subject to future appropriations to keep Missouri's DNA = system=20 compatible with the Federal Bureau of Investigation's DNA data bank = system.=20
6. All DNA records and = biological=20 materials retained in the DNA profiling system are considered closed = records=20 pursuant to chapter 610, RSMo. All records containing any information = held or=20 maintained by any person or by any agency, department, or political = subdivision=20 of the state concerning an individual's DNA profile shall be strictly=20 confidential and shall not be disclosed, except to:
(1) Peace officers, as defined = in=20 section 590.010, RSMo, and other employees of law = enforcement=20 agencies who need to obtain such records to perform their public=20 duties;
(2) The attorney general or = any=20 assistant attorneys general acting on his or her behalf, as defined in = chapter=20 27, RSMo;
(3) Prosecuting attorneys or = circuit=20 attorneys as defined in chapter 56, RSMo, and their employees who need = to obtain=20 such records to perform their public duties; or
(4) Associate circuit judges, = circuit=20 judges, judges of the courts of appeals, supreme court judges, and their = employees who need to obtain such records to perform their public=20 duties.
7. Any person who obtains = records=20 pursuant to the provisions of this section shall use such records only = for=20 investigative and prosecutorial purposes, including, but not limited to = use at=20 any criminal trial, hearing, or proceeding; or for law enforcement=20 identification purposes, including identification of human remains. Such = records=20 shall be considered strictly confidential and shall only be released as=20 authorized by this section.
8. An individual may request = expungement=20 of his or her DNA sample and DNA profile through the court issuing the = reversal=20 or dismissal. A certified copy of the court order establishing that such = conviction has been reversed or guilty plea or plea of nolo contendere = has been=20 set aside shall be sent to the Missouri state highway patrol crime = laboratory.=20 Upon receipt of the court order, the laboratory will determine that the=20 requesting individual has no other qualifying offense as a result of any = separate plea or conviction prior to expungement.
(1) A person whose DNA record = or DNA=20 profile has been included in the state DNA database in accordance with = this act=20 may request expungement on the grounds that the conviction has been = reversed, or=20 the guilty plea or plea of nolo contendere on which the authority for = including=20 that person's DNA record or DNA profile was based has been set=20 aside.
(2) Upon receipt of a written = request=20 for expungement, a certified copy of the final court order reversing the = conviction or setting aside the plea and any other information necessary = to=20 ascertain the validity of the request, the Missouri state highway patrol = crime=20 laboratory shall expunge all DNA records and identifiable information in = the=20 database pertaining to the person and destroy the DNA sample of the = person,=20 unless the Missouri state highway patrol determines that the person is = otherwise=20 obligated to submit a DNA sample. Within thirty days after the receipt = of the=20 court order, the Missouri state highway patrol shall notify the = individual that=20 it has expunged his or her DNA sample and DNA profile, or the basis for = its=20 determination that the person is otherwise obligated to submit a DNA=20 sample.
(3) The Missouri state highway = patrol is=20 not required to destroy any item of physical evidence obtained from a = DNA sample=20 if evidence relating to another person would thereby be=20 destroyed.
(4) Any identification, = warrant, arrest,=20 or evidentiary use of a DNA match derived from the database shall not be = excluded or suppressed from evidence, nor shall any conviction be = invalidated or=20 reversed or plea set aside due to the failure to expunge or a delay in = expunging=20 DNA records.
9. Notwithstanding the = sovereign=20 immunity of the state, an individual who is determined to be "actually = innocent"=20 of a crime may be paid restitution in accordance with this subsection. = The=20 individual may receive an amount of fifty dollars per day for each day = of=20 post-conviction incarceration for the crime for which the individual is=20 determined to be actually innocent. The petition for the payment of said = restitution shall be filed with the sentencing court within one year of = the=20 release from confinement after August 28, 2003. For the purposes of this = subsection the term "actually innocent" shall mean:
(a) The individual was = convicted of a=20 felony for which a final order of release was entered by the=20 court;
(b) All appeals of the order = of release=20 have been exhausted;
(c) The individual was not = serving any=20 term of a sentence for any other crime concurrently with the sentence = for which=20 they are determined to be actually innocent; and
(d) Testing ordered pursuant = to section=20 547.035, RSMo demonstrates a person's innocence of the crime for which = the=20 person is in custody.
An individual who receives = restitution=20 pursuant to this subsection shall be prohibited from seeking any civil = redress=20 from the state, its departments and agencies, or any employee thereof, = or any=20 political subdivision or its employees. This subsection shall not be = construed=20 as a waiver of sovereign immunity for any purposes other than the = restitution=20 provided for herein. All restitution paid pursuant to this subsection = shall be=20 paid from moneys in the DNA profiling analysis fund. The department = shall=20 determine the aggregate amount of restitution owed during a fiscal year. = If=20 moneys remain in the fund on June 30 of each fiscal year, the remaining = moneys=20 shall be used to pay restitution to those individuals who have received = an order=20 awarding restitution under this subsection during the past fiscal year. = If=20 insufficient moneys remain in the fund on June 30 of each fiscal year to = pay=20 restitution to such persons, the department shall pay each individual = who has=20 received an order awarding restitution a pro rata share of the amount = such=20 person is owed. The remaining amounts owed to such individual shall be = paid from=20 the fund on June 30 of each subsequent fiscal year, provided moneys = remain in=20 the fund on June 30, until such time as the restitution to the = individual has=20 been paid in full. No interest on unpaid restitution shall be awarded to = the=20 individual. If there are no moneys remaining in the DNA profiling = analysis fund,=20 then no payments shall be made under this subsection. No individual who = has been=20 determined by the court to be actually innocent shall be responsible for = the=20 costs of care under section 217.831, RSMo.
10. If the results of the DNA = testing=20 confirm the person's guilt, then the person filing for DNA testing under = section=20 547.035, RSMo shall:
(a) Be liable for any = reasonable costs=20 incurred when conducting the DNA test, including but not limited to the = cost of=20 the test. Such costs shall be determined by the court and shall be = included in=20 the findings of fact and conclusions of law made by the court; and=20
(b) Be sanctioned under the = provisions=20 of section 217.262, RSMo.
650.100. The following words shall = have the=20 following meanings unless a different meaning clearly appears from the=20 context:
(1) "CODIS", the Federal = Bureau of=20 Investigation's Combined DNA Index System that allows the storage and = exchange=20 of DNA records submitted by federal, state, and local DNA crime = laboratories.=20 The term "CODIS" includes the National DNA Index System administered and = operated by the Federal Bureau of Investigation;
(2) "Crime = laboratories"=20 [means], those crime laboratories = existing on=20 September 28, 1979, in certain cities in this state and which have at = least once=20 prior to September 28, 1979, received funding through the Missouri = council on=20 criminal justice, and such other crime laboratories that may be created = to serve=20 specified regions of the state as determined by the director of the = department=20 of public safety;
[(2)]=20 (3) "Department" = [means], the=20 Missouri department of public safety;
(4) "DNA", deoxyribonucleic = acid. DNA is=20 located in the cells and provides an individual's personal genetic = blueprint.=20 DNA encodes genetic information that is the basis of human heredity and = forensic=20 identification;
(5) "DNA profile", refers to = the=20 collective results of all DNA identification analyses on an individual's = DNA=20 sample;
(6) "DNA record", the DNA = identification=20 information stored in the state DNA database or CODIS. The DNA record is = the=20 result obtained from the DNA analysis. The DNA record is comprised of = the=20 characteristics of a DNA sample, which are of value in establishing the = identity=20 of individuals;
(7) "DNA sample", a biological = sample=20 provided by any person with respect to offenses covered by section = 650.055 or=20 submitted to the Missouri state highway patrol crime laboratory pursuant = to=20 sections 650.050 to 650.100 for analysis or storage or = both;
[(3)]=20 (8) "Local funds" = [means],=20 any funds not provided by the federal government.
Section B. The repeal and reenactment = of=20 sections 650.050, 650.052, 650.055, and 650.100 of this act shall become = effective January 1, 2005.