The House Committee on Public Safety and Homeland Security offers 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 Code of Georgia Annotated,
relating to DNA sampling, collection, and analysis, so as to provide for the collection of
DNA samples from individuals who are arrested for the commission of a serious violent
felony; to provide for the furnishing of DNA kits; to revise provisions relating to the
collection of DNA samples; to revise provisions relating to the destruction of certain DNA
profiles; to provide for a short title; to provide for related matters; to provide for contingent
effectiveness upon appropriation of funds; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1.
This Act shall be known and may be cited as the "Ashley Spence Act."
SECTION 2.
Article 6A of Chapter 3 of Title 35 of the Official Code of Georgia Annotated, relating to
DNA sampling, collection, and analysis, is amended by revising Code Section 35-3-160,
relating to DNA analysis in felony convictions and certain felony charges and performance
of tests, as follows:
"35-3-160.
(a) As used in this article, the term:
(1) <del>'Department' means the Department of Corrections.
(2)</del> 'Detention facility' means <del>a penal institution under the jurisdiction of the department,
including penal institutions operated by a private company on behalf of the department,
inmate work camps, inmate boot camps, probation detention centers, parole revocation
centers, and county correctional facilities</del> <ins>any place of confinement for adult individuals
accused of, convicted of, or adjudicated for violating a law of this state or an ordinance
of a political subdivision of this state.
</ins> <del>(3)(2)</del> 'Division' means the Division of Forensic Sciences of the bureau.
<ins>(3) 'Serious violent felony' shall have the same meaning as set forth in Code
Section 17-10-6.1.
</ins> (b)(1) <del>A</del> <ins>Except as provided in paragraph (3) of this subsection, a</ins> sample of
deoxyribonucleic acid (DNA) shall be collected by oral swab or other noninvasive
procedure from any individual:
(A) Who has been convicted of a felony and is currently incarcerated in a detention
facility, serving a probation sentence, or serving under the jurisdiction of the State
Board of Pardons and Paroles for such felony;
(B) Who has been charged with a felony, and sentence for such offense has been
imposed pursuant to Article 3 of Chapter 8 of Title 42 or pursuant to subsection (a)
or (c) of Code Section 16-13-2; <del>or
</del> (C) Who has been convicted of a felony and is subject to an immigration detainer
notice as such term is defined in Code Section 42-1-11.5; <ins>or
(D) Who has been arrested for the commission of a serious violent felony in this state.
</ins> (2) <del>Unless a DNA sample has already been collected by the department or another
agency or entity, each</del> <ins>Each</ins> DNA sample required by paragraph (1) of this subsection
shall be collected by the detention facility which is detaining or the entity which is
supervising such individual, and the <ins>DNA</ins> sample shall be forwarded to the division.
<ins>(3) No DNA sample shall be required to be collected under this Code section from any
individual for whom a DNA sample has already been received by the division and that
has not been destroyed pursuant to Code Section 35-3-165.
</ins> <del>(3)(4)</del> Paragraph (1) of this subsection shall not apply to any individual for a conviction
for a misdemeanor, to any individual who is charged with a misdemeanor and the
sentence for such misdemeanor is imposed pursuant to Article 3 of Chapter 8 of Title 42
regarding first offenders, or because he or she has been charged with a misdemeanor.
(c) DNA analysis shall be performed by the division <ins>or its designee.</ins> The division shall be
authorized to contract with individuals or organizations for services to perform such
analysis. The identifying characteristics of the profile resulting from the DNA analysis
shall be stored and maintained by the bureau in a DNA data bank in accordance with Code
Sections 35-3-162 and 35-3-163 and shall be made available only as provided in Code
Section 35-3-163. <ins>All costs of testing shall be paid by the state of Georgia.
(d) All DNA sample collection kits shall be postage prepaid and furnished to law
enforcement agencies by the state of Georgia."
</ins> SECTION 3.
Said article is further amended by revising Code Section 35-3-161, relating to time and
procedure for withdrawal of blood samples, as follows:
"35-3-161.
(a) Each <ins>DNA</ins> sample required pursuant to Code Section 35-3-160 from <del>persons
</del> <ins>individuals</ins> who are <ins>arrested or</ins> to be incarcerated shall be <del>withdrawn within the first 30
days of incarceration at the receiving unit of the detention facility or at such other place as
is designated by the department</del> <ins>collected by the arresting officer or at the processing
facility at the time such individuals are received, booked, or otherwise processed by the
</ins>
<ins>detention facility. However, if the person is arrested without a warrant, then the DNA
sample shall not be taken until a probable cause determination has been made by a judge
or grand jury.</ins> Each <ins>DNA</ins> sample required pursuant to Code Section 35-3-160 from
<del>persons</del> <ins>individuals</ins> who are to be released from a detention facility shall be withdrawn
within the 12 months preceding such <del>person's release at a place designated by the
department</del> <ins>individual's release.</ins> The required <ins>DNA</ins> samples from persons who are not
sentenced to a term of <del>confinement</del> <ins>imprisonment</ins> shall be withdrawn as a condition of
probation. The division shall publish in its quality manuals the procedures for the
collection and transfer of <ins>DNA</ins> samples to such division pursuant to Code Section
35-3-154. <del>Personnel at a detention facility shall implement the provisions of this Code
section as part of the regular processing of offenders.
</del> (b) <del>Samples</del> <ins>DNA samples</ins> collected by oral swab or by a noninvasive procedure may be
collected by any individual who has been trained in the procedure. Only a correctional
health nurse technician, physician, registered professional nurse, licensed practical nurse,
graduate laboratory technician, or phlebotomist shall withdraw any sample of blood to be
submitted for <ins>DNA</ins> analysis. No civil liability shall attach to any person authorized to take
a <ins>DNA</ins> sample as provided in this article as a result of the act of taking a <ins>DNA</ins> sample from
any person submitting thereto, provided <ins>that</ins> the <ins>DNA</ins> sample was taken according to
recognized medically accepted procedures. However, no person shall be relieved from
liability for negligence in the withdrawing of any blood sample <ins>and chemically clean sterile
disposable needles shall be used for the withdrawal of all blood samples.
</ins> (c) <del>Chemically clean sterile disposable needles shall be used for the withdrawal of all
samples of blood.</del> The containers for <del>blood</del> <ins>DNA</ins> samples, <del>oral swabs, and the samples
obtained by noninvasive procedures</del> <ins>collected pursuant to this article</ins> shall be sealed and
labeled with the subject's name, social security number, date of birth, race, and gender plus
the name of the person collecting the <ins>DNA</ins> sample and the date and place of collection.
The containers shall be secured to prevent tampering with the contents. The steps set forth
in this subsection relating to the taking, handling, identification, and disposition of <ins>DNA
</ins> samples are procedural and not substantive. Substantial compliance therewith shall be
deemed to be sufficient. The <ins>DNA</ins> samples <ins>collected pursuant to this article</ins> shall be
transported to the division not more than 15 days following <del>withdrawal</del> <ins>the date of
collection</ins> and shall be analyzed and stored in the DNA data bank in accordance with Code
Sections 35-3-162 and 35-3-163.
<ins>(d) Personnel at a detention facility shall implement the provisions of this Code section as
part of the regular processing of arrested or incarcerated individuals."
</ins> SECTION 4.
Said article is further amended by revising Code Section 35-3-165, relating to expungement
of DNA profile in data bank and requirements, as follows:
"35-3-165.
(a) The bureau shall purge all records and identifiable information in the data bank
pertaining to the DNA profile of the individual and shall destroy all such DNA samples
collected from such individual within 30 days of the receipt of:
<ins>(1) A</ins> <del>a</del> certified copy of the applicable:
<ins>(A) Court order or documentation from the prosecuting attorney or arresting law
enforcement agency stating that the charges for which the DNA profile was created
were dismissed; or
(1)(B)</ins> Court order reversing the conviction <ins>of the charges for which the DNA profile
was created</ins> together with a court order or documentation from the prosecuting attorney
stating that the charges were dismissed;
(2) Judgment of acquittal <ins>of the charges for which the DNA profile was created;
</ins> (3) Sentencing order showing that <del>all of</del> the felony charges <ins>for which the DNA profile
was created</ins> were reduced to misdemeanors; <del>or
</del>
(4) Court order showing the successful completion of <del>the</del> <ins>a</ins> sentence <ins>relating to the
charges for which the DNA profile was created</ins> that was imposed pursuant to Article 3
of Chapter 8 of Title 42 or pursuant to subsection (a) or (c) of Code Section 16-13-2;
<ins>(5) Documentation from the prosecuting attorney that the applicable statute of limitations
for each of the offenses relating to the charges for which the DNA profile was created has
expired and that no such charges remain pending; or
(6) A combination of any of the above that provides satisfactory proof that none of the
charges for which the DNA profile was created remain pending and that the individual
has not been convicted of any such charges or that the individual has completed a
sentence relating to any such charges that was imposed pursuant to Article 3 of Chapter 8
of Title 42 or pursuant to subsection (a) or (c) of Code Section 16-13-2.
</ins> (b) A DNA sample obtained in good faith shall be deemed to have been obtained in
accordance with the requirements of this article and its use in accordance with this article
shall be authorized until <del>it is expunged as set forth in subsection (a) of this Code section
</del> <ins>a court order directing expungement is obtained and the documentation set forth in
subsection (c) of this Code section is submitted to the bureau.
(c) Within 30 days of an event occurring as described in subsection (a) of this Code
section, the clerk of court shall provide the bureau with a copy of:
(1) The court order reversing and dismissing the conviction;
(2) The judgment of acquittal;
(3) The sentencing order showing that all of the felony charges were reduced to
misdemeanors;
(4) The court order dead docketing the felony charges; or
(5) Documentation from the prosecuting attorney stating that the charges were dismissed.
(d) The bureau shall purge all records and identifiable information in the data bank
pertaining to the individual described in subsection (a) of this Code section and destroy all
samples from the individual upon such individual within 30 days of the receipt of a written
</ins>
<ins>request that such data be expunged, pursuant to this Code section, and a certified copy of
the court order reversing and dismissing the conviction the documentation described in
subsection (c) of this Code section. If a clerk of the court fails to comply with
subsection (c) of this Code section, the individual whose DNA was collected may submit
a certified copy of the documentation described in subsection (c) of this Code section to
the bureau."
</ins> SECTION 5.
This Act shall become effective on July 1, 2028, only if funds are specifically appropriated
for the purposes of this Act and shall become effective when funds so appropriated become
available for expenditure.
SECTION 6.
All laws and parts of laws in conflict with this Act are repealed.