act-2004-0-185•Pennsylvania Act 2004-185 — JUDICIAL CODE (42 PA.C.S.) AND LAW AND JUSTICE (44 PA.C.S.) - GENETIC IDENTIFICATION EVIDENCE, DNA DATA AND TESTING AND REQUIRED DNA SAMPLES AND EXPUNGEMENT AND PROVIDING FOR GOOD FAITH
Pennsylvania Act 2004-185 — JUDICIAL CODE (42 PA.C.S.) AND LAW AND JUSTICE (44 PA.C.S.) - GENETIC IDENTIFICATION EVIDENCE, DNA DATA AND TESTING AND REQUIRED DNA SAMPLES AND EXPUNGEMENT AND PROVIDING FOR GOOD FAITH
act-2004-0-1852004 Pa. Act 185Law
Act text
JUDICIAL CODE (42 PA.C.S.) AND LAW AND JUSTICE (44 PA.C.S.) - GENETIC
IDENTIFICATION EVIDENCE, DNA DATA AND TESTING AND REQUIRED DNA SAMPLES
AND EXPUNGEMENT AND PROVIDING FOR GOOD FAITH
Act of Nov. 30, 2004, P.L. 1428, No. 185 Cl. 42
Session of 2004
No. 2004-185
HB 835
AN ACT
Amending Titles 42 (Judiciary and Judicial Procedure) and 44
(Law and Justice) of the Pennsylvania Consolidated Statutes,
further providing for genetic identification evidence;
recodifying provisions on DNA data and testing; further
providing for scope, for policy, for the definitions of "DNA
record" and "other specified offense," for required DNA
samples and for expungement; and providing for good faith.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Chapter 47 of Title 42 of the Pennsylvania
Consolidated Statutes is repealed.
Section 2. Section 5552 of Title 42 is amended by adding a
subsection to read:
§ 5552. Other offenses.
* * *
(c.1) Genetic identification evidence.--Notwithstanding any
provision of law to the contrary, if evidence of a misdemeanor
sexual offense set forth in subsection (c)(3) or a felony
offense is obtained containing human deoxyribonucleic acid (DNA)
which is subsequently used to identify an otherwise unidentified
individual as the perpetrator of the offense, the prosecution of
the offense may be commenced within the period of limitations
provided for the offense or one year after the identity of the
individual is determined, whichever is later.
* * *
Section 3. Title 44 is amended
by adding parts to read:
PART I
PRELIMINARY PROVISIONS
(RESERVED)
PART II
PENNSYLVANIA STATE POLICE
CHAPTER 21
PRELIMINARY PROVISIONS
(RESERVED)
CHAPTER 23
DNA DATA AND TESTING
Subchapter
A. Preliminary Provisions
B. General Provisions
C. Enforcement and Other Provisions
SUBCHAPTER A
PRELIMINARY PROVISIONS
Sec.
2301. Scope of chapter.
2302. Policy.
2303. Definitions.
§ 2301. Scope of chapter.
This chapter provides for DNA detection of sexual offenders
and other offenders.
§ 2302. Policy.
The General Assembly finds and declares that:
(1) DNA data banks are an important tool in criminal
investigations, in the exclusion of individuals who are the
subject of criminal investigations or prosecutions and in
deterring and detecting recidivist acts.
(2) Several states have enacted laws requiring persons
convicted of certain crimes, especially sex offenses, to
provide genetic samples for DNA profiling.
(3) Moreover, it is the policy of the Commonwealth to
assist Federal, State and local criminal justice and law
enforcement agencies in the identification and detection of
individuals in criminal investigations.
(4) It is therefore in the best interest of the
Commonwealth to establish a DNA data base and a DNA data bank
containing DNA samples submitted by individuals convicted of,
adjudicated delinquent for or accepted into ARD for felony
sex offenses and other specified offenses.
§ 2303. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"ARD." Accelerated Rehabilitative Disposition.
"CODIS." The term is derived from Combined DNA Index System,
the Federal Bureau of Investigation's national DNA
identification index system that allows the storage and exchange
of DNA records submitted by state and local forensic DNA
laboratories.
"Commissioner." The Commissioner of the Pennsylvania State
Police.
"Criminal justice agency." A criminal justice agency as
defined in 18 Pa.C.S. § 9102 (relating to definitions).
"DNA." Deoxyribonucleic acid. DNA is located in the cells
and provides an individual's personal genetic blueprint. DNA
encodes genetic information that is the basis of human heredity
and forensic identification.
"DNA record." DNA identification information stored in the
State DNA Data Base or the Combined DNA Index System for the
purpose of generating investigative leads or supporting
statistical interpretation of DNA test results. The term
includes nuclear and mitochondrial typing. The DNA record is the
result obtained from the DNA typing tests. The DNA record is
comprised of the characteristics of a DNA sample which are of
value in establishing the identity of individuals. The results
of all DNA identification tests on an individual's DNA sample
are also collectively referred to as the DNA profile of an
individual.
"DNA sample." A blood or tissue sample provided by any
person with respect to offenses covered by this chapter or
submitted to the Pennsylvania State Police laboratory pursuant
to the former act of May 28, 1995 (1st Sp.Sess., P.L.1009,
No.14), known as the DNA Detection of Sexual and Violent
Offenders Act, to the former 42 Pa.C.S. Ch. 47 (relating to DNA
data and testing) or to this chapter for analysis or storage, or
both.
"FBI." The Federal Bureau of Investigation.
"Felony sex offense." A felony offense or an attempt,
conspiracy or solicitation to commit a felony offense under any
of the following:
18 Pa.C.S. Ch. 31 (relating to sexual offenses).
18 Pa.C.S. § 4302 (relating to incest).
18 Pa.C.S. § 5902(c)(1)(iii) and (iv) (relating to
prostitution and related offenses).
18 Pa.C.S. § 5903(a) (relating to obscene and other
sexual materials and performances) where the offense
constitutes a felony.
18 Pa.C.S. § 6312 (relating to sexual abuse of children).
18 Pa.C.S. § 6318 (relating to unlawful contact with
minor) where the most serious underlying offense for which
the defendant contacted the minor is graded as a felony.
18 Pa.C.S. § 6320 (relating to sexual exploitation of
children).
"Former DNA Act." The former act of May 28, 1995 (1st
Sp.Sess., P.L.1009, No.14), known as the DNA Detection of Sexual
and Violent Offenders Act.
"Fund." The DNA Detection Fund reestablished in section 2335
(relating to DNA Detection Fund).
"Other specified offense." A felony offense or an offense
under 18 Pa.C.S. § 2910 (relating to luring a child into a motor
vehicle) or 3126 (relating to indecent assault) or an attempt to
commit such an offense.
"State Police." The Pennsylvania State Police.
SUBCHAPTER B
GENERAL PROVISIONS
Sec.
2311. Powers and duties of State Police.
2312. State DNA Data Base.
2313. State DNA Data Bank.
2314. State Police recommendation of additional offenses.
2315. Procedural compatibility with FBI.
2316. DNA sample required upon conviction, delinquency
adjudication and certain ARD cases.
2317. Procedures for withdrawal, collection and transmission
of DNA samples.
2318. Procedures for conduct, disposition and use of DNA
analysis.
2319. DNA data base exchange.
2320. Cancellation of authority to access or exchange DNA
records.
2321. Expungement.
2322. Mandatory cost.
2323. Good faith.
§ 2311. Powers and duties of State Police.
In addition to any other powers and duties conferred by this
chapter, the State Police shall:
(1) Be responsible for the policy management and
administration of the State DNA identification record system
to support law enforcement agencies and other criminal
justice agencies.
(2) Promulgate rules and regulations to carry out the
provisions of this chapter.
(3) Provide for liaison with the FBI and other criminal
justice agencies in regard to the Commonwealth's
participation in CODIS or in any DNA data base designated by
the State Police.
§ 2312. State DNA Data Base.
The State DNA Data Base is reestablished. It shall be
administered by the State Police and provide DNA records to the
FBI for storage and maintenance by CODIS. The State DNA Data
Base shall have the capability provided by computer software and
procedures administered by the State Police to store and
maintain DNA records related to:
(1) forensic casework;
(2) convicted offenders required to provide a DNA sample
under this chapter; and
(3) anonymous DNA records used for research or quality
control.
§ 2313. State DNA Data Bank.
The State DNA Data Bank is reestablished. It shall serve as
the repository of DNA samples collected under this chapter.
§ 2314. State Police recommendation of additional offenses.
The State Police may recommend to the General Assembly that
it enact legislation for the inclusion of additional offenses
for which DNA samples shall be taken and otherwise subjected to
the provisions of this chapter. In determining whether to
recommend additional offenses, the State Police shall consider
those offenses for which DNA testing will have a substantial
impact on the detection and identification of sex offenders and
violent offenders.
§ 2315. Procedural compatibility with FBI.
The DNA identification system as established by the State
Police shall be compatible with the procedures specified by the
FBI, including use of comparable test procedures, laboratory
equipment, supplies and computer software.
§ 2316. DNA sample required upon conviction, delinquency
adjudication and certain ARD cases.
(a) General rule.--A person who is convicted or adjudicated
delinquent for a felony sex offense or other specified offense
or who is or remains incarcerated for a felony sex offense or
other specified offense on or after the effective date of this
chapter shall have a DNA sample drawn as follows:
(1) A person who is sentenced or receives a delinquency
disposition to a term of confinement for an offense covered
by this subsection shall have a DNA sample drawn upon intake
to a prison, jail or juvenile detention facility or any other
detention facility or institution. If the person is already
confined at the time of sentencing or adjudication, the
person shall have a DNA sample drawn immediately after the
sentencing or adjudication. If a DNA sample is not timely
drawn in accordance with this section, the DNA sample may be
drawn any time thereafter by the prison, jail, juvenile
detention facility, detention facility or institution.
(2) A person who is convicted or adjudicated delinquent
for an offense covered by this subsection shall have a DNA
sample drawn as a condition for any sentence or adjudication
which disposition will not involve an intake into a prison,
jail, juvenile detention facility or any other detention
facility or institution.
(3) Under no circumstances shall a person who is
convicted or adjudicated delinquent for an offense covered by
this subsection be released in any manner after such
disposition unless and until a DNA sample has been withdrawn.
(b) Condition of release, probation or parole.--
(1) A person who has been convicted or adjudicated
delinquent for a felony sex offense or other specified
offense and who serves a term of confinement in connection
therewith after June 18, 2002, shall not be released in any
manner unless and until a DNA sample has been withdrawn.
(2) This chapter shall apply to incarcerated persons
convicted or adjudicated delinquent for a felony sex offense
prior to June 19, 2002.
(3) This chapter shall apply to incarcerated persons and
persons on probation or parole who were convicted or
adjudicated delinquent for other specified offenses prior to
the effective date of this paragraph.
(c) Certain ARD cases.--Acceptance into ARD as a result of a
criminal charge for a felony sex offense or other specified
offense filed after June 18, 2002, may be conditioned upon the
giving of a DNA sample.
(d) Supervision of DNA samples.--All DNA samples taken
pursuant to this section shall be taken in accordance with
regulations promulgated by the State Police in consultation with
the Department of Corrections.
(d.1) Mandatory submission.--The requirements of this
chapter are mandatory and apply regardless of whether a court
advises a person that a DNA sample must be provided to the State
DNA Data Base and the State DNA Data Bank as a result of a
conviction or adjudication of delinquency. A person who has been
sentenced to death or life imprisonment without the possibility
of parole or to any term of incarceration is not exempt from the
requirements of this chapter. Any person subject to this chapter
who has not provided a DNA sample for any reason, including
because of an oversight or error, shall provide a DNA sample for
inclusion in the State DNA Data Base and the State DNA Data Bank
after being notified by authorized law enforcement or
corrections personnel. If a person provides a DNA sample which
is not adequate for any reason, the person shall provide another
DNA sample for inclusion in the State DNA Data Base and the
State DNA Data Bank after being notified by authorized law
enforcement or corrections personnel.
(e) Definition.--As used in this section, the term
"released" means any release, parole, furlough, work release,
prerelease or release in any other manner from a prison, jail,
juvenile detention facility or any other place of confinement.
§ 2317. Procedures for withdrawal, collection and transmission
of DNA samples.
(a) Drawing of DNA samples.--
(1) Each DNA sample required to be drawn pursuant to
section 2316 (relating to DNA sample required upon
conviction, delinquency adjudication and certain ARD cases)
from persons who are incarcerated or confined shall be drawn
at the place of incarceration or confinement as provided for
in section 2316. DNA samples from persons who are not ordered
or sentenced to a term of confinement shall be drawn at a
prison, jail unit, juvenile facility or other facility to be
specified by the court. Only those individuals qualified to
draw DNA samples in a medically approved manner shall draw a
DNA sample to be submitted for DNA analysis. Such sample and
the set of fingerprints provided for in paragraph (2) shall
be delivered to the State Police within 48 hours of drawing
the sample.
(2) In addition to the DNA sample, a full set of
fingerprints shall be taken from the person from whom the DNA
sample is being drawn for the exclusive purpose of verifying
the identity of such person.
(b) Limitation on liability.--Persons authorized to draw DNA
samples under this section shall not be criminally liable for
withdrawing a DNA sample and transmitting test results pursuant
to this chapter if they perform these activities in good faith
and shall not be civilly liable for such activities when the
person acted in a reasonable manner according to generally
accepted medical and other professional practices.
(c) Reasonable use of force.--Duly authorized law
enforcement and corrections personnel may employ reasonable
force in cases where an individual refuses to submit to DNA
testing authorized under this chapter, and no such employee
shall be criminally or civilly liable for the use of reasonable
force.
§ 2318. Procedures for conduct, disposition and use of DNA
analysis.
(a) Procedures.--The State Police shall prescribe procedures
to be used in the collection, submission, identification,
analysis, storage and disposition of DNA samples and typing
results of DNA samples submitted under the former DNA Act,
former 42 Pa.C.S. Ch. 47 (relating to DNA data and testing) or
this chapter. The DNA sample typing results shall be securely
stored in the State DNA Data Base, and records of testing shall
be retained on file with the State Police consistent with the
procedures established by the FBI. These procedures shall also
include quality assurance guidelines to ensure that DNA
identification records meet standards for laboratories which
submit DNA records to the State DNA Data Base.
(b) Contracting.--The State Police are authorized to
contract with third parties for purposes of this chapter.
(c) Use of tests.--Except as otherwise provided in section
2319(c) (relating to DNA data base exchange), the tests to be
performed on each DNA sample shall be used only for law
enforcement identification purposes or to assist in the recovery
or identification of human remains from disasters or for other
humanitarian identification purposes, including identification
of missing persons.
(d) Restrictions and requirements on contracting party.--Any
other party contracting to carry out the functions of this
chapter shall be subject to the same restrictions and
requirements of this chapter, insofar as applicable, as the
State Police as well as any additional restrictions imposed by
the State Police.
§ 2319. DNA data base exchange.
(a) Receipt of DNA samples by State Police.--It shall be the
duty of the State Police to receive DNA samples, to store, to
perform analysis or to contract for DNA typing analysis with a
qualified DNA laboratory that meets the guidelines as
established by the State Police, to classify and to file the DNA
record of identification characteristic profiles of DNA samples
submitted under the former DNA Act, former 42 Pa.C.S. Ch. 47
(relating to DNA data and testing) or this chapter and to make
such information available as provided in this section. The
State Police may contract out the storage of DNA typing analysis
and may contract out DNA typing analysis to a qualified DNA
laboratory that meets guidelines as established by the State
Police. The results of the DNA profile of individuals in the
State DNA Data Base shall be made available:
(1) to criminal justice agencies or approved crime
laboratories which serve these agencies; or
(2) upon written or electronic request and in
furtherance of an official investigation of a criminal
offense or offender or suspected offender.
(b) Methods of obtaining information.--The State Police
shall adopt guidelines governing the methods of obtaining
information from the State DNA Data Base and CODIS and
procedures for verification of the identity and authority of the
requester.
(c) Population data base.--The State Police may establish a
separate population data base comprised of DNA samples obtained
under this chapter after all personal identification is removed.
The State Police may share or disseminate the population data
base with other criminal justice agencies or crime laboratories
that serve to assist the State Police with statistical data
bases. The population data base may be made available to and
searched by other agencies participating in the CODIS system.
§ 2320. Cancellation of authority to access or exchange DNA
records.
The State Police shall be authorized, for good cause shown,
to revoke or suspend the right of a forensic DNA laboratory
within this Commonwealth to access or exchange DNA
identification records with criminal justice agencies.
§ 2321. Expungement.
(a) General rule.--A person whose DNA sample, record or
profile has been included in the State DNA Data Bank or the
State DNA Data Base pursuant to the former DNA Act, former 42
Pa.C.S. Ch. 47 (relating to DNA data and testing) or this
chapter may request expungement on the grounds that the
conviction or delinquency adjudication on which the authority
for including that person's DNA sample, record or profile was
based has been reversed and the case dismissed or that the DNA
sample, record or profile was included in the State DNA Data
Bank or the State DNA Data Base by mistake.
(b) Duty of State Police.--The State Police shall purge all
records and identifiable information in the State DNA Data Bank
or State DNA Data Base pertaining to the person and destroy each
sample, record and profile from the person upon:
(1) receipt of a written request for expungement
pursuant to this section and a certified copy of the final
court order reversing and dismissing the conviction; or
(2) clear and convincing proof that the sample record or
profile was included by mistake.
(c) Limitations.--
(1) An incarcerated or previously incarcerated person
may not seek expungement of a DNA sample, record or profile
on the ground that that person was convicted or adjudicated
delinquent for a felony sex offense prior to July 27, 1995.
(2) A person may not seek expungement of a DNA sample,
record or profile on the ground that that person was
convicted or adjudicated delinquent for one of the other
specified offenses prior to the effective date of the former
DNA Act or this chapter.
(d) Effect of expungement.--The expungement of a DNA sample,
record or profile pursuant to this section shall have no effect
on any data bank or data base match occurring prior to the
expungement of the sample, record or profile.
§ 2322. Mandatory cost.
Unless the court finds that undue hardship would result, a
mandatory cost of $250, which shall be in addition to any other
costs imposed pursuant to statutory authority, shall
automatically be assessed on any person convicted, adjudicated
delinquent or granted ARD for a felony sex offense or other
specified offense, and all proceeds derived from this section
shall be transmitted to the fund.
§ 2323. Good faith.
A DNA sample obtained in good faith under this subchapter
shall be deemed to have been obtained in accordance with the
requirements of this subchapter, and its use in accordance with
this chapter is authorized until an expungement is obtained
pursuant to section 2321 (relating to expungement).
SUBCHAPTER C
ENFORCEMENT AND OTHER PROVISIONS
Sec.
2331. Prohibition on disclosure.
2332. Criminal penalties.
2333. Civil actions.
2334. Confidentiality of records.
2335. DNA Detection Fund.
2336. Authority of law enforcement officers.
§ 2331. Prohibition on disclosure.
(a) Disclosure.--Any person who by virtue of employment or
official position or any person contracting to carry out any
functions under this chapter, including any officers, employees
and agents of such contractor, who has possession of or access
to individually identifiable DNA information contained in the
State DNA Data Base or in the State DNA Data Bank shall not
disclose it in any manner to any person or agency not authorized
to receive it knowing that such person or agency is not
authorized to receive it.
(b) Obtaining information.--No person shall obtain
individually identifiable DNA information from the State DNA
Data Base or the State DNA Data Bank without authorization to do
so.
§ 2332. Criminal penalties.
(a) Disclosure.--Any person who by virtue of employment or
official position or any person contracting to carry out any
functions under this chapter, including any officers, employees
and agents of such contractor, who has possession of or access
to individually identifiable DNA information contained in the
State DNA Data Base or in the State DNA Data Bank and who for
pecuniary gain for such person or for any other person discloses
it in any manner to any person or agency not authorized to
receive it commits a misdemeanor of the first degree.
(b) Obtaining information.--Any person who knowingly
violates section 2331(b) (relating to prohibition on disclosure)
commits a misdemeanor of the first degree.
§ 2333. Civil actions.
(a) Injunctions.--The State Police or any other aggrieved
individual or agency may institute an action in a court of
proper jurisdiction against any person, agency or organization
to enjoin any criminal justice agency, noncriminal justice
agency, organization or individual from violating the provisions
of this chapter or to compel such agency, organization or person
to comply with the provisions of this chapter.
(b) Action for damages.--
(1) Any person aggrieved by a knowing violation of
section 2331 (relating to prohibition on disclosure) shall
have the substantive right to bring an action for damages by
reason of such violation in a court of competent
jurisdiction.
(2) A person found by the court to have been aggrieved
by a knowing violation of section 2331 shall be entitled to
actual and real damages of not less than $100 for each
violation and to reasonable costs of litigation and attorney
fees. Exemplary and punitive damages of not less than $1,000
nor more than $10,000 shall be imposed for any violation of
section 2331.
§ 2334. Confidentiality of records.
All DNA profiles and samples submitted to the State Police
pursuant to the former DNA Act, former 42 Pa.C.S. Ch. 47
(relating to DNA data and testing) or this chapter shall be
treated as confidential except as otherwise provided in this
chapter.
§ 2335. DNA Detection Fund.
The DNA Detection Fund is reestablished in the State Treasury
as a restricted fund. All costs collected under section 2322
(relating to mandatory cost) shall be paid into the fund. All
moneys in the fund and the interest accruing thereon are hereby
appropriated to the Pennsylvania State Police on a continuing
basis to carry out the provisions of this chapter upon
authorization of the Governor for each fiscal year.
§ 2336. Authority of law enforcement officers.
Nothing in this chapter shall limit or abrogate any existing
authority of law enforcement officers to take, maintain, store
and utilize DNA samples for law enforcement purposes.
Section 4. Chapter 23 of Title 44 is a continuation of 42
Pa.C.S. Ch. 47, which was a continuation of the act of May 28,
1995 (1st Sp.Sess., P.L.1009, No.14), known as the DNA Detection
of Sexual and Violent Offenders Act.
Section 5. This act shall take effect as follows:
(1) The following provisions shall take effect
immediately:
(i) The addition of 42 Pa.C.S. § 5552(c.1).
(ii) Section 4 of this act.
(iii) This section.
(2) The remainder of this act shall take effect in 60
days.
APPROVED--The 30th day of November, A. D. 2004.
EDWARD G. RENDELL
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