SB29: SB29 DNA Sampling, Collection, and Analysis; collection of DNA samples of individuals arrested for the commission of a felony at the time such individuals are booked or otherwise processed by a detention facility; provide

26 LC 63 0071S The House Committee on Public Safety and Homeland Security offe rs the following substitute to SB 29: A BILL TO BE ENTITLED AN ACT To amend Article 6A of Chapter 3 of Title 35 of the Official Co de of Georgia Annotated,1 relating to DNA sampling, collection, and analysis, so as to pr ovide for the collection of2 DNA samples from individuals who are arrested for the commissio n of a serious violent3 felony; to provide for the furnishing of DNA kits; to revise pr ovisions relating to the4 collection of DNA samples; to revise provisions relating to the destruction of certain DNA5 profiles; to provide for a short title; to provide for related matters; to provide for contingent6 effectiveness upon appropriation of funds; to repeal conflicting laws; and for other purposes.7 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:8 SECTION 1.9 This Act shall be known and may be cited as the "Ashley Spence Act."10 SECTION 2.11 Article 6A of Chapter 3 of Title 35 of the Official Code of Geo rgia Annotated, relating to12 DNA sampling, collection, and analysis, is amended by revising Code Section 35-3-160,13 relating to DNA analysis in felony convictions and certain felony charges and performance14 of tests, as follows:15 S. B. 29 (SUB) - 1 - 26 LC 63 0071S "35-3-160.16 (a) As used in this article, the term:17 (1) 'Department' means the Department of Corrections.18 (2) 'Detention facility' means a penal institution under the jurisdiction of the department,19 including penal institutions operated by a private company on behalf of the department,20 inmate work camps, inmate boot camps, probation detention centers, parole revocation21 centers, and county correctional facilities any place of confinement for adult individuals22 accused of, convicted of, or adjudicated for violating a law of this state or an ordinance23 of a political subdivision of this state.24 (3)(2) 'Division' means the Division of Forensic Sciences of the bureau.25 (3) 'Serious violent felony' shall have the same meaning as se t forth in Code26 Section 17-10-6.1.27 (b)(1) A Except as provided in paragraph (3) of this subsection, a sample of28 deoxyribonucleic acid (DNA) shall be collected by oral swab or other noninvasive29 procedure from any individual:30 (A) Who has been convicted of a felony and is currently incarc erated in a detention31 facility, serving a probation sentence, or serving under the ju risdiction of the State32 Board of Pardons and Paroles for such felony;33 (B) Who has been charged with a felony, and sentence for such offense has been34 imposed pursuant to Article 3 of Chapter 8 of Title 42 or pursu ant to subsection (a)35 or (c) of Code Section 16-13-2; or36 (C) Who has been convicted of a felony and is subject to an im migration detainer37 notice as such term is defined in Code Section 42-1-11.5; or38 (D) Who has been arrested for the commission of a serious violent felony in this state.39 (2) Unless a DNA sample has already been collected by the depa rtment or another40 agency or entity, each Each DNA sample required by paragraph (1) of this subsection41 S. B. 29 (SUB) - 2 - 26 LC 63 0071S shall be collected by the detention facility which is detaining or the entity which is42 supervising such individual, and the DNA sample shall be forwarded to the division.43 (3) No DNA sample shall be required to be collected under this Code section from any44 individual for whom a DNA sample has already been received by the division and that45 has not been destroyed pursuant to Code Section 35-3-165.46 (3)(4) Paragraph (1) of this subsection shall not apply to any individual for a conviction47 for a misdemeanor, to any individual who is charged with a misd emeanor and the48 sentence for such misdemeanor is imposed pursuant to Article 3 of Chapter 8 of Title 4249 regarding first offenders, or because he or she has been charged with a misdemeanor.50 (c) DNA analysis shall be performed by the division or its designee. The division shall be51 authorized to contract with individuals or organizations for se rvices to perform such52 analysis. The identifying characteristics of the profile resul ting from the DNA analysis53 shall be stored and maintained by the bureau in a DNA data bank in accordance with Code54 Sections 35-3-162 and 35-3-163 and shall be made available only as provided in Code55 Section 35-3-163. All costs of testing shall be paid by the state of Georgia.56 (d) All DNA sample collection kits shall be postage prepaid an d furnished to law57 enforcement agencies by the state of Georgia."58 SECTION 3.59 Said article is further amended by revising Code Section 35-3-1 61, relating to time and60 procedure for withdrawal of blood samples, as follows:61 "35-3-161.62 ( a ) E a c h D N A sample required pursuant to Code Section 35-3-160 from persons63 individuals who are arrested or to be incarcerated shall be withdrawn within the first 3064 days of incarceration at the receiving unit of the detention facility or at such other place as65 is designated by the department collected by the arresting officer or at the processing66 facility at the time such individuals are received, booked, or otherwise processed by the67 S. B. 29 (SUB) - 3 - 26 LC 63 0071S detention facility. However, if the person is arrested without a warrant, then the DNA68 sample shall not be taken until a probable cause determination has been made by a judge69 or grand jury . E a c h D N A sample required pursuant to Code Section 35-3-160 from70 persons individuals who are to be released from a detention facility shall be with drawn71 within the 12 months preceding such person's release at a place designated by the72 department individual's release. The required DNA samples from persons who are not73 sentenced to a term of confinement imprisonment shall be withdrawn as a condition of74 probation. The division shall publish in its quality manuals t he procedures for the75 collection and transfer of DNA samples to such division pursuant to Code Section76 35-3-154. Personnel at a detention facility shall implement th e provisions of this Code77 section as part of the regular processing of offenders.78 (b) Samples DNA samples collected by oral swab or by a noninvasive procedure may be79 collected by any individual who has been trained in the procedu re. Only a correctional80 health nurse technician, physician, registered professional nurse, licensed practical nurse,81 graduate laboratory technician, or phlebotomist shall withdraw any sample of blood to be82 submitted for DNA analysis. No civil liability shall attach to any person authorized to take83 a DNA sample as provided in this article as a result of the act of taking a DNA sample from84 any person submitting the reto, provided that the DNA sample was taken according to85 recognized medically accepted procedures. However, no person s hall be relieved from86 liability for negligence in the withdrawing of any blood sample and chemically clean sterile87 disposable needles shall be used for the withdrawal of all blood samples.88 (c) Chemically clean sterile disposable needles shall be used for the withdrawal of all89 samples of blood. The containers for blood DNA samples, oral swabs, and the samples90 obtained by noninvasive procedures collected pursuant to this article shall be sealed and91 labeled with the subject's name, social security number, date of birth, race, and gender plus92 the name of the person collecting the DNA sample and the date and place of collection. 93 The containers shall be secured to prevent tampering with the contents. The steps set forth94 S. B. 29 (SUB) - 4 - 26 LC 63 0071S in this subsection relating to the taking, handling, identification, and disposition of DNA95 samples are procedural and not substantive. Substantial compli ance therewith shall be96 deemed to be sufficient. The DNA samples collected pursuant to this article shall be97 transported to the division not more than 15 days following wit hdrawal t h e d a t e o f98 collection and shall be analyzed and stored in the DNA data bank in accordance with Code99 Sections 35-3-162 and 35-3-163.100 (d) Personnel at a detention facility shall implement the provisions of this Code section as101 part of the regular processing of arrested or incarcerated individuals."102 SECTION 4.103 Said article is further amended by revising Code Section 35-3-165, relating to expungement104 of DNA profile in data bank and requirements, as follows:105 "35-3-165.106 (a) The bureau shall purge all records and identifiable inform ation in the data bank107 pertaining to the DNA profile of the individual and shall destr oy all such DNA samples108 collected from such individual within 30 days of the receipt of:109 (1) A a certified copy of the applicable:110 (A) Court order or documentation from the prosecuting attorney or arresting law111 enforcement agency stating that the charges for which the DNA p rofile was created112 were dismissed; or113 (1)(B) Court order reversing the conviction of the charges for which the DNA profile114 was created together with a court order or documentation from the prosecuting attorney115 stating that the charges were dismissed;116 (2) Judgment of acquittal of the charges for which the DNA profile was created;117 (3) Sentencing order showing that all of the felony charges for which the DNA profile118 was created were reduced to misdemeanors; or119 S. B. 29 (SUB) - 5 - 26 LC 63 0071S (4) Court order showing the successful completion of the a sentence relating to the120 charges for which the DNA profile was created that was imposed pursuant to Article 3121 of Chapter 8 of Title 42 or pursuant to subsection (a) or (c) of Code Section 16-13-2;122 (5) Documentation from the prosecuting attorney that the applicable statute of limitations123 for each of the offenses relating to the charges for which the DNA profile was created has124 expired and that no such charges remain pending; or125 (6) A combination of any of the above that provides satisfactory proof that none of the126 charges for which the DNA profile was created remain pending and that the individual127 has not been convicted of any such charges or that the individu al has completed a128 sentence relating to any such charges that was imposed pursuant to Article 3 of Chapter 8129 of Title 42 or pursuant to subsection (a) or (c) of Code Section 16-13-2.130 (b) A DNA sample obtained in good faith shall be deemed to hav e been obtained in131 accordance with the requirements of this article and its use in accordance with this article132 shall be authorized until it is expunged as set forth in subsection (a) of this Code section133 a court order directing expungement is obtained and the documen tation set forth in134 subsection (c) of this Code section is submitted to the bureau.135 (c) Within 30 days of an event occurring as described in subse ction (a) of this Code136 section, the clerk of court shall provide the bureau with a copy of:137 (1) The court order reversing and dismissing the conviction;138 (2) The judgment of acquittal;139 (3) The sentencing order showing that all of the felony charge s w e r e r e d u c e d t o140 misdemeanors;141 (4) The court order dead docketing the felony charges; or142 (5) Documentation from the prosecuting attorney stating that the charges were dismissed.143 (d) The bureau shall purge all records and identifiable inform ation in the data bank144 pertaining to the individual described in subsection (a) of this Code section and destroy all145 samples from the individual upon such individual within 30 days of the receipt of a written146 S. B. 29 (SUB) - 6 - 26 LC 63 0071S request that such data be expunged, pursuant to this Code section, and a certified copy of147 the court order reversing and dismissing the conviction the doc umentation described in148 subsection (c) of this Code section. If a clerk of the court fa ils to comply with149 subsection (c) of this Code section, the individual whose DNA was collected may submit150 a certified copy of the documentation described in subsection ( c) of this Code section to151 the bureau."152 SECTION 5.153 This Act shall become effective on July 1, 2028, only if funds are specifically appropriated154 for the purposes of this Act and shall become effective when funds so appropriated become155 available for expenditure.156 SECTION 6.157 All laws and parts of laws in conflict with this Act are repealed.158 S. B. 29 (SUB) - 7 -