Bill Text: HI SB152 | 2015 | Regular Session | Amended

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Bill Title: Crime; Forensic Identification; DNA Analysis; Retention of Biological Evidence

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed - Dead) 2015-03-12 - Referred to JUD, referral sheet 30 [SB152 Detail]

Download: Hawaii-2015-SB152-Amended.html

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THE SENATE	S.B. NO.	152
TWENTY-EIGHTH LEGISLATURE, 2015		S.D. 1
STATE OF HAWAII

A BILL FOR AN ACT

 

 

RELATING TO THE RETENTION OF BIOLOGICAL EVIDENCE.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  Section 844D-126, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§844D-126[]]  Retention of biological evidence.  (a)  All evidence in the custody or control of an evidence custodian, including a police department, prosecuting attorney, laboratory, or court [that is], shall be retained if the evidence:

     (1)  Is related to the investigation or prosecution of a case in which there has been a judgment of conviction [and that may] for:

         (A)  Murder;

         (B)  Manslaughter;

         (C)  Kidnapping;

         (D)  Sexual assault in the first degree;

         (E)  Sexual assault in the second degree;

         (F)  Assault in the first degree; or

         (G)  An attempt or criminal conspiracy to commit any of the offenses set forth in this paragraph; and

     (2)  Has been determined to contain biological evidence that could reasonably be used for DNA analysis to:

         (A)  Establish the identity of the person who committed the offense that resulted in the judgment of conviction; or

         (B)  Exclude a person from the group of persons who could have committed the offense that resulted in the judgment of conviction.

     (b)  The evidence shall be retained at least until the later occurring of either:

     (1)  The exhaustion of all appeals of the case to which the evidence is related; or

     (2)  The completion of any sentence, including any term of probation or parole, imposed on the defendant in the case to which the evidence relates.

     [(b)  The attorney general shall establish procedures and protocols, which shall be uniform throughout the State, for the collection and preservation of evidence retained pursuant to this section.]

     (c)  An evidence custodian may dispose of evidence retained pursuant to subsections (a) and (b) before the expiration of the time period specified in subsection (b) if:

     (1)  The court, pursuant to subsection (g), grants a motion for disposal of the evidence, filed by the prosecuting attorney before sentencing and scheduled to be heard by the court immediately after sentencing or at any time thereafter; or

     (2)  The prosecuting attorney or evidence custodian files with the court a notification of proposed disposal of the evidence under this section, and either:

         (A)  The defendant fails to file a statement of objection pursuant to subsection (f); or

         (B)  If the defendant files a statement of objection pursuant to subsection (f), the court, after a hearing, allows disposal of the evidence pursuant to subsection (g).

     (d)  The filed notification of proposed disposal of the evidence shall be served upon:

     (1)  The defendant against whom the judgment of conviction was entered, by actual personal service or, after a reasonable and documented good faith attempt for personal service was made, at the defendant's last known address;

     (2)  The defendant's parole officer or probation officer; provided that service could not be made upon the defendant by actual personal service and the defendant continues to be under parole or probation supervision; and

     (3)  The defendant's attorney of record;

provided that if the defendant does not have any attorney of record or the defendant's attorney of record is unavailable, service could not be made upon the defendant by actual personal service, the defendant is no longer under parole or probation supervision, and the facts shall appear by affidavit or otherwise to the satisfaction of the court, the court may order that service be made by publication of the notice in at least one newspaper published in the State and having a general circulation in the circuit in which the judgment of conviction was rendered, in a manner and for a time as the court may order, but no less than once each week in four successive weeks, the last publication to be not less than twenty-one days prior to the return date stated therein unless a different time is prescribed by order of the court.

     (e)  The filed notification of proposed disposal of the evidence shall include:

     (1)  A description of the evidence proposed to be disposed; and

     (2)  Notice that the evidence custodian may dispose of the evidence before the expiration of the time period specified in subsection (b) unless, within ninety days of receipt of the notification, the defendant files a written statement of objection with the court and serves the statement of objection on the evidence custodian and prosecuting attorney.

     (f)  If within ninety days of receipt of the notification of proposed disposal of the evidence, the defendant files a written statement of objection with the court and serves the statement of objection on the evidence custodian and prosecuting attorney, the court shall schedule a hearing on the objection and provide notice of the hearing to the evidence custodian and the agency that prosecuted the case.

     (g)  If, after a hearing on a notification of proposed disposal of the evidence or a hearing on a motion for disposal of evidence, the court determines by a preponderance of the evidence that:

     (1)  The identity of the defendant as the perpetrator of the offense that resulted in the judgment of conviction was not a contested issue in the case; or

     (2)  The evidence could not reasonably be used for DNA analysis to:

         (A)  Establish the identity of the person who committed the offense for which the defendant was convicted; or

         (B)  Exclude a person from the group of persons who could have committed the offense for which the defendant was convicted,

the court may allow the evidence custodian to dispose of the evidence or any appropriate portions thereof.

     (h)  As used in this section, "biological evidence" means an individual's blood, semen, hair, saliva, skin tissue, fingernail scrapings, teeth, bone, bodily fluids, or other identifiable biological material, including the contents of a sexual assault examination kit."

     SECTION 2.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 3.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 4.  This Act shall take effect on January 7, 2059.

 

 

Report Title:

Crime; Forensic Identification; DNA Analysis; Retention of Biological Evidence

 

Description:

Specifies the criminal offenses for which biological evidence must be retained for a certain period following a conviction and the standards for uses of retained evidence.  Establishes a process for the disposal of biological evidence earlier than the prescribed period for retention.  Effective 01/07/2059.  (SD1)

 

 

 

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