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  • Acts
  • 1997
  • Chapter 106 AN ACT RELATIVE TO THE ENHANCEMENT OF FORENSIC TECHNOLOGY.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:


SECTION 1. It shall be the policy of the commonwealth to assist local, state and federal criminal justice and law enforcement agencies in: (1) deterring and discovering crimes and recidivistic criminal activity; (2) identifying individuals for, and excluding individuals from, criminal investigation or prosecution; and (3) searching for missing persons. Said policy shall be served by establishing facilities for comparing biological evidence recovered during criminal investigations with biological material obtained from offenders convicted of crimes in the commonwealth.

SECTION 2. Deoxyribonucleic acid, hereinafter referred to as DNA, is located in the nuclei of human cells and encodes genetic information that is the basis of human heredity and forensic identification. DNA is recovered frequently from the scenes of violent crimes against the person, including sexual offenses. The legislature finds that the collection and analysis of DNA samples is an integral part of the investigation and prosecution of criminal offenses and that such technology is an important tool in the defense of individuals charged with criminal offenses in the commonwealth.

SECTION 3. Chapter 6 of the General Laws is hereby amended by inserting after section 178 O, as appearing in the 1996 Official Edition, the following section:-

Section 178P. Whenever a police officer has probable cause to believe that a sex offender has failed to comply with the registration requirements of sections 178C to 178 O, inclusive, such officer shall have the right to arrest such sex offender.

SECTION 4. Section 1 of chapter 22A of the General Laws, as so appearing, is hereby amended by inserting after the definition of "Missing child or children" the following definition:- "Person", any individual, whether an adult or a child.

SECTION 5. Section 6 of said chapter 22A, as so appearing, is hereby amended by striking out, in lines 1, 3 and 11, the word "child", each time it appears, and inserting in place thereof, in each instance, the following word:- person.

SECTION 6. Said section 6 of said chapter 22A, as so appearing, is hereby further amended by striking out, in line 7, the word "children" and inserting in place thereof the following word:- persons.

SECTION 7. The General Laws are hereby amended by inserting after chapter 22D, as so appearing, the following chapter:-

CHAPTER 22E.
STATE DNA DATABASE.

Section 1. As used in this chapter, the following words shall have the following meanings, unless the context clearly requires otherwise:-

"CODIS" or "combined DNA index system", the Federal Bureau of Investigation's national DNA identification index system which facilitates the storage and exchange of DNA records submitted by state and local criminal justice and law enforcement agencies.

"Colonel", the colonel of state police.

"DNA", deoxyribonucleic acid.

"DNA analysis", DNA typing tests that generate numerical identification information and are obtained from a DNA sample.

"DNA record", DNA information that is derived from a DNA sample and DNA analysis and is stored in the state DNA database or in CODIS, including all records pertaining to DNA analysis.

"DNA sample", biological evidence of any nature that is utilized to conduct DNA analysis.

"Department", the department of state police.

"Director", the director of the crime laboratory within the department of state police.

"FBI", the Federal Bureau of Investigation within the United States department of justice.

"State DNA database", the DNA identification records system maintained and administered by the director.

Section 2. There is hereby established within the department of state police a state DNA database under the direction of the director. The director shall be a person knowledgeable in the field of forensic sciences and shall be paid an annual salary which shall be set by the colonel in consultation with the secretary of public safety and the secretary for administration and finance. Such salary shall be competitive with comparable or similar positions in other jurisdictions. The director shall have responsibility for DNA analysis and the management and administration of the state DNA database.

Section 3. Any person who is convicted of an offense under the provisions of section 1, 13, 13B, 13F, 13H, 14, 15, 16, 17, 18, 18A, 18B, 18C, 22, 22A, 23, 24, 24B or 26 of chapter 265, section 14 or 15 of chapter 266 or section 2, 3, 4A, 4B, 16, 17, 29, 29A, 29B, 35, 35A or 53A of chapter 272 or of an attempt or a conspiracy to commit any of the aforementioned offenses shall submit a DNA sample which shall be collected by a person authorized pursuant to section 4, to the department within 90 days of such conviction, in accordance with regulations or procedures established by the director. The results of such sample shall become part of the state DNA database. The submission of such DNA sample shall not be stayed pending a sentence appeal, motion for new trial, appeal to an appellate court or other post conviction motion or petition.

Section 4. (a) The director may establish regulations or procedures for the collection of DNA samples, including standards for training and licensing personnel who may collect such samples. Only a physician, registered professional nurse, licensed practical nurse, phlebotomist, health care worker with phlebotomist training or a person licensed and trained by the director shall collect DNA samples pursuant to section 3. No person authorized under this section to collect DNA samples, including blood samples, shall be subject to civil liability for the act of withdrawing blood, or any other act directly related to the taking of a DNA sample; provided, however, that they shall employ recognized medical procedures and comply with all regulations or procedures promulgated by the director for the collection of DNA samples. Duly authorized law enforcement and correction personnel may employ reasonable force to assist in collecting DNA samples in cases where an individual refuses to submit to such collection as required under this chapter; provided, further, that such law enforcement and correction personnel shall not be subject to criminal prosecution or civil liability for the use of such reasonable force.

(b) The cost of preparing, collecting and processing a DNA sample shall be assessed against the person required to submit a DNA sample, unless such person is indigent as defined in section 27A of chapter 261. The cost of preparing, collecting and processing a DNA sample shall be determined by the secretary for administration and finance in consultation with the director and shall be paid to the department and retained by it to offset costs associated with creating, maintaining and administering the state DNA database.

Section 5. The department shall provide all blood sample vials, collection tubes, mailing tubes, other DNA sample collection materials, labels and instructions for the collection of DNA samples pursuant to this chapter.

Section 6. All DNA samples collected pursuant to sections 3 and 4 shall be forwarded to the director for the purpose of DNA analysis. The director shall provide for the receipt and analysis of DNA samples and for the filing and storage of DNA records derived from such DNA analysis in the state DNA database. The director shall promulgate regulations governing the collection, submission, receipt, identification, storage and disposal of DNA samples.

Section 7. The department is hereby authorized to establish such laboratories and facilities within the commonwealth as may be necessary to conduct forensic and DNA analysis. Notwithstanding the provisions of any general or special law to the contrary, the department is hereby authorized to enter into such contracts, agreements or partnerships with governmental or nongovernmental entities, including educational, scientific, medical or not for profit entities, as the director may deem necessary to meet the purposes of this chapter.

Section 8. The director shall establish procedural rules governing the testing and analysis of DNA samples and a quality assurance program, which shall include proficiency standards for laboratories and analysts responsible for performing DNA testing and analysis. Such procedural rules and quality assurance program shall be compatible with the procedural rules and quality assurance program utilized by the FBI and shall establish compatible laboratory techniques, laboratory equipment, supplies, computer software and acceptance criteria for DNA records in CODIS. The director may employ independent forensic laboratories to perform the DNA analysis required under section 3; provided, however, that such laboratories shall comply with the regulations established pursuant to this section and the procedural rules and quality assurance program established pursuant to this section. With respect to any independent forensic laboratory that performs or seeks to perform the DNA analysis required under section 3, the director may audit such laboratory for compliance with such regulations or procedures as may be adopted under this chapter and may revoke such laboratory's right to create and exchange DNA records on the ground that such laboratory has failed to comply with any regulations, procedures, rules or quality assurance programs established pursuant to this section.

Section 9. All DNA records collected pursuant to this chapter shall be confidential and shall not be disclosed to any person or agency unless such disclosure shall be authorized by this chapter. DNA records shall not be stored in a criminal offender record information system operated by the criminal history systems board pursuant to sections 167 to 178, inclusive, of chapter 6.

Section 10. (a) The director shall furnish records in his possession, including DNA records and analysis, to police departments in cities and towns, to the department, to the department of correction, to a sheriff's department, to the parole board or to prosecuting officers within the commonwealth upon request in writing or electronically.

(b) The director shall make DNA records available upon written or electronic request to: (1) local, state and federal criminal justice and law enforcement and prosecuting agencies, including forensic laboratories serving such agencies, for identification purposes in order to further official criminal investigations or prosecutions; provided, however, that any DNA sample obtained directly from a person not otherwise required to provide a DNA sample under this chapter and delivered to the director for comparison with DNA records in the state DNA database shall have been obtained pursuant to a warrant; (2) the FBI for storage and maintenance in CODIS; and (3) any person who has been identified and charged with a criminal offense as a result of a search of DNA records stored in the state DNA database; provided, however, that such access shall be limited to DNA information pertaining to such individual.

(c) The director shall make DNA records available upon written or electronic request to meet such purposes or comply with such statutory obligations as may be required under federal law as a condition to obtaining federal grants or funding.

(d) The director may, in his discretion, make DNA records available to authorized persons or organizations, upon written or electronic request, for the limited purpose of (1) advancing DNA analysis methods and supporting statistical interpretation of DNA analysis, including development of population databases; provided, however, that personal identifying information shall be removed from DNA records disclosed for such purposes; (2) assisting in the identification of human remains from mass disasters; (3) assisting the identification and recovery of missing persons; and (4) advancing other humanitarian purposes.

Section 11. Any person required to provide a DNA sample pursuant to this chapter and who refuses to provide such DNA sample shall be subject to punishment by a fine of not more than $1,000 or imprisonment in a jail or house of correction for not more than six months or both.

Section 12. Any person who, by virtue of employment or official position, has possession of, or access to, a DNA sample or record or portion thereof contained in the state DNA database and who purposely discloses such record or portion thereof in any manner to any person or agency not authorized to receive such record or portion thereof shall be subject to punishment by a fine of not more than $1,000 or imprisonment in a jail or house of correction for not more than six months or both.

Section 13. Any person who, without proper authorization, willfully obtains a DNA record or a portion thereof contained in the state DNA database shall be subject to punishment by a fine of not more than $1,000 or imprisonment in a jail or house of correction for not more than six months or both.

Section 14. Any person who tampers with or attempts to tamper with a DNA sample or DNA record with the intent to interfere with DNA analysis shall be subject to punishment by a fine of not more than $5,000 or imprisonment in the state prison for not more than five years or in a jail or house of correction for not more than two and a half years or both such fine and imprisonment.

Section 15. Any person whose DNA record has been included in the state DNA database may apply to the superior court to have such record expunged on the grounds that the conviction or judicial determination that resulted in the inclusion of the person's DNA record in the state DNA database has been reversed and the case dismissed; provided, however, that one year shall have elapsed from the date the judgment reversing or dismissing the conviction became final or such person shall have obtained, in writing, authorization from the district attorney that no further prosecution is contemplated under the original offense for which such person was convicted or for which the original judicial determination was entered.

SECTION 8. Any person convicted of any offense listed in section 3 of chapter 22E of the General Laws, who is incarcerated in any prison or house of correction on the effective date of this act, notwithstanding the date of such conviction, shall submit a DNA sample to the department within 90 days of the effective date of this act or prior to release from custody, whichever first occurs. Any person currently on probation or parole as the result of a conviction or judicial determination resulting from a charge of any of the above listed offenses, notwithstanding of the date of such conviction or judicial determination, shall submit a DNA sample to the department within 90 days of the effective date of this act.

Approved September 30, 1997.