Provides for identification by means of DNA testing of all felons, and provides for less intrusive and more economical methods of testing. Requires DNA testing of each person arrested for a felony. Extends the statute of limitations in cases where DNA has been recovered as evidence. Provides for post-conviction DNA testing, and funding ($750,000) to implement the new DNA testing program.

A BILL FOR AN ACT

SECTION 1. This Act shall be known as the "DNA Testing to Convict the Guilty and Free the Innocent Act of 2005."

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

§ -1 Definitions. In this chapter, unless a different meaning is plainly required:

"Conviction" means a judgment on a verdict or a finding of guilty, or a plea of guilty or nolo contendere;

"Department" means the police department of the city and county of Honolulu.

"DNA" means deoxyribonucleic acid.

"Print impression" means any fingerprint, thumbprint, palm print, or set of fingerprints or palm prints designated in the department's rules or internal regulations adopted pursuant to section -3.

"Specimen" means human biologic material collected in a manner specified in the department's rules or internal regulations promulgated pursuant to section -3, including, but not limited to, blood.

"Sample" means human biologic material collected in a manner specified in the department's rules or internal regulations promulgated pursuant to section -3, including but not limited to, saliva collected by means of buccal swab.

§ -2 Administration. The department shall be responsible for the management and administration of the State's DNA database and databank identification program and for liaison with the Federal Bureau of Investigation (FBI) and other relevant agencies regarding the State's participation in a national DNA database such as the FBI's Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide.

§ -3 Implementation. (a) The department shall be responsible for implementing this chapter.

(b) The department, the polices department of the counties of Hawaii, Kauai, and Maui, the department of public safety, and the office of youth services shall adopt rules and internal regulations for the implementation of this chapter, as necessary, to give effect to the intent and purpose of this chapter, and to ensure that databank blood specimens or buccal swab samples, and print impressions are collected from qualifying offenders in a timely manner, as soon as possible after conviction, or a plea or finding of guilty, no contest, or not guilty by reason of insanity, or upon the disposition rendered in the case of a juvenile who is adjudicated as a law violator for commission of any of this chapter's enumerated qualifying offenses, or when it is determined that a qualifying offender has not given the required samples.

(c) Records, specimens, samples, data, and other information assembled pursuant to this chapter shall be considered government records excepted from the general rule by section 92F-13 and information in which an individual has a significant privacy interest within the meaning of section 92F-14(b)(2) and shall not be open to public inspection.

§ -21 Collection of specimens, samples, and print impressions at correctional facility or other detention facility. (a) When the specimens, samples, and print impressions required by this chapter are collected at a correctional facility or other detention facility, including a private correctional facilities, the chief administrative officer of the correctional facility or other detention facility shall be responsible for ensuring all of the following:

(b) The specimens, samples, and print impressions required by this section shall be collected by a person using a collection kit approved by the department and in accordance with the requirements and procedures set forth in section -62.

§ -22 Analysis and examination of specimens for identification purposes. (a) The department shall authorize DNA analysis and other forensic identification analysis pursuant to this chapter only for identification purposes.

(b) The department shall perform examinations of print impressions pursuant to this chapter only for identification purposes.

§ -23 Repository of samples and records. (a) The department may designate itself or other appropriate entities to serve as repositories for blood specimens and buccal swab and other biological samples collected, and the designated entity shall analyze specimens and samples, and store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records related to the following:

(b) The designated entity shall include files as necessary to implement this chapter.

(c) Nothing in this section shall be construed as requiring the designated entity to provide specimens or samples for quality control or other purposes to those who request specimens or samples.

(d) Submission of samples, specimens, or profiles for the state DNA database and data bank program shall include information as required by the department for ensuring search capabilities and compliance with National DNA Index System standards.

§ -31 Offenders subject to collection. (a) The following persons shall provide buccal swab samples and print impressions of each hand, and, if required by the collecting agency's rules or internal regulations, blood specimens, required for law enforcement identification analysis:

(b) Any adult person who is arrested for or charged with any of the following offenses shall provide buccal swab samples and print impressions of each hand required for law enforcement identification analysis:

(c) Testing pursuant to this section shall begin immediately for all persons who have been convicted of murder in any degree or any offense defined in chapter 846E, but shall not begin for other persons until thirty days after statewide publication of notice by the attorney general pursuant to section 1-28.5.

(d) The attorney general's notice, pursuant to subsection (c), may be announced in stages, beginning with notice of the beginning of testing of all persons not already mandated to be tested by subsection (c) who have been convicted of a class A felony, then notice of the beginning of testing of all persons not already mandated to be tested by subsection (c) who have been convicted of a class B felony, then notice of the beginning of testing of all persons not already mandated to be tested by subsection (c) who have been convicted of a class C felony, then notice of the beginning of testing of all class A felony arrestees, then notice of the beginning of testing of all class B felony arrestees, and finally notice of the beginning of testing of all class C felony arrestees.

(e) Nothing in this section shall be construed as prohibiting collection and analysis of specimens, samples, or print impressions as a condition of a plea for a non-qualifying offense.

§ -32 Application to all qualifying persons. (a) The provisions of this chapter and its requirements for submission of specimens, samples, and print impressions as soon as administratively practicable shall apply to all qualifying persons regardless of sentence imposed, including any sentence of life without the possibility of parole, or any life or indeterminate term, or any other disposition rendered in the case of an adult or juvenile tried as an adult, and regardless of disposition rendered or placement made in the case of juvenile who is found to be responsible for having committed any offense that would be a felony if committed by an adult.

(b) The provisions of this chapter and its requirements for submission of specimens, samples, and print impressions as soon as administratively practicable by qualified persons as described in this section shall apply regardless of placement or confinement in any mental hospital or other public or private treatment facility.

(c) The provisions of this chapter are mandatory and apply whether or not the court advises a person, including any juvenile, that the person must provide the data bank and database specimens, samples, and print impressions as a condition of probation, parole, or any plea of guilty, no contest, or not guilty by reason of insanity, or any admission to any of the offenses described in subsection (a).

§ -33 Notification by prosecutor and inquiry by court. (a) If at any stage of court proceedings the prosecutor determines that specimens, samples, and print impressions required by this chapter have not already been taken from any person required to give specimens, samples, and print impressions by this chapter, the prosecutor shall notify the court orally on the record, or in writing, and request that the court order collection of the specimens, samples, and print impressions required by law. However, a failure by the prosecutor or any other law enforcement agency to notify the court shall not relieve a person of the obligation to provide specimens, samples, and print impressions pursuant to this chapter.

(b) Prior to final disposition or sentencing in the case the court shall inquire and verify that the specimens, samples, and print impressions required by this chapter have been obtained and that this fact is included in the judgment or dispositional order in the case of a juvenile. The judgment issued by the court shall indicate that the court has ordered the person to comply with the requirements of this chapter and that the person shall be included in the State's DNA and Forensic Identification Data Base and data bank program and be subject to this chapter. However, failure by the court to enter these facts in the judgment shall not invalidate a plea, conviction, or disposition, or otherwise relieve a person from the requirements of this chapter.

§ -34 Specimens, samples and print impressions required by this chapter for present and past qualifying offenses of record. (a) Specimens, samples, and print impressions required by this chapter shall be collected from any adult person following arrest for a felony offense as specified in section -31.

Thirty days after the statewide publication of notice by the attorney general as provide by section -31, each adult person arrested for a felony offense as specified in section -31(b) shall provide the buccal swab samples and print impressions during the booking or intake or reception center process or as soon as administratively practicable after arrest, but in any case, prior to release on bail or pending trial or any physical release from confinement or custody.

(b) If, subsequent to the enactment of this chapter, the person subject to this chapter did not have specimens, samples, and print impressions taken immediately following arrest or during booking or intake procedures or is released on bail or pending trial or is not confined or incarcerated at the time of sentencing or otherwise bypasses a prison inmate reception center maintained by the department of public safety, the court shall order the person to report within five calendar days to a correctional facility or to a state, county, private, or other designated facility to provide the required specimens, samples, and print impressions in accordance with this chapter.

§ -35 Collection from persons confined or in custody after conviction or adjudication. Any person, including any juvenile who is imprisoned or confined or placed in a state correctional facility, a county correctional facility, a facility within the jurisdiction of the office of youth services, the department of public safety, a residential treatment program, or any state, county, private, or other facility after a conviction of any felony or misdemeanor offense, or any adjudication or disposition rendered in the case of a juvenile, whether or not that crime or offense is one set forth in section -31, shall provide buccal swab samples and print impressions and, if required by the collecting agency's rules or internal regulations, blood specimens, immediately at intake, or during the prison reception center process, or as soon as administratively practicable at the appropriate custodial or receiving institution or placed in program if the person has a record of any past or present conviction, or adjudication as a juvenile law violator, of a qualifying offense described in section -31 or has a record of any past or present conviction or adjudication in any other court, including any state, federal, or military court, of any offense, that, if committed or attempted in this State, would have been punishable as an offense described in section -31, and the person's blood specimens, buccal swab samples, and print impressions authorized by this chapter are not in the possession of the department or have not been recorded as part of the department's DNA data bank program.

§ -36 Collection from persons on probation, parole, or other release. (a) Any person, including any juvenile, who has a record of any past or present conviction or adjudication for an offense set forth in section -31, and who is on probation or parole for any felony or misdemeanor offense, whether or not that crime or offense is one set forth in section -31(a), shall provide buccal swab samples and print impressions and, if required pursuant to this chapter, blood specimens if:

(b) The person shall have any required specimens, samples, and print impressions collected within five calendar days of being notified by the court, or a law enforcement agency or other entity authorized by the department. The specimens, samples, and print impressions shall be collected in accordance with section -21 at a correctional facility or a state, county, private, or other facility designated for this collection.

§ -37 Collection from parole violators and others returned to custody. (a) If a person, including any juvenile, who has been released on parole, furlough, or other release for any offense or crime, whether or not set forth in section -31, is returned to a state correctional or other institution for a violation of a condition of the person's parole, furlough, or other release, or for any other reason, that person shall provide buccal swab samples and print impressions and, if required by the collecting agency's rules or internal regulations, any blood specimens or other biological samples, at a state correctional or other receiving institution, if the person has a record of any past or present conviction, or adjudication as juvenile law violator, of a qualifying offense described in section -31 or has a record of any past or present conviction or adjudication in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this State, would have been punishable as an offense described in section -31, and the person's blood specimens, buccal swab samples, and print impressions authorized by this chapter are not in the possession of the department's DNA laboratory or have not been recorded as part of the department's DNA data bank program.

§ -38 Collection from persons accepted into Hawaii from other jurisdictions. (a) When an offender from another state is accepted into this State under any interstate compact, or under any other reciprocal agreement with any county, state, or federal agency, or any other provision of law, whether or not the offender is confined or released, the acceptance is conditional on the offender providing blood specimens, buccal swab samples, and print impressions pursuant to this chapter, if the offender has a record of any past or present conviction or adjudication in Hawaii of a qualifying offense described in section -31 or has a record of any past or present conviction or adjudication or had a disposition rendered in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as an offense described in section -31.

(b) If the person is not confined, the specimens, samples, and print impressions required by this chapter must be provided within five calendar days after the person reports to the supervising agent or within five calendar days of notice to the person, whichever occurs first. The person shall report to a correctional facility in the county where the person resides or temporarily is located to have the specimens, samples, and print impressions collected pursuant to this chapter. The specimens, samples, and print impressions shall be collected in accordance with this chapter.

(c) If the person is confined, the person shall provide the blood specimens, buccal swab samples, and print impressions required by this chapter as soon as practicable after the person's receipt in a state, county, private, or other designated facility.

§ -39 Collection from persons in federal institutions. (a) Subject to the approval of the Director of the FBI, persons confined or incarcerated in a federal prison or federal institution who have a record of any past or present conviction or juvenile adjudication for a qualifying offense described in section -31 or of a similar crime under the laws of the United States or any other state that would constitute an offense described in section -31, are subject to this chapter and shall provide blood specimens, buccal swab samples, and print impressions pursuant to this chapter if any of the following apply:

(b) The department shall, upon the request of the United States Department of Justice, forward portions of the specimens or samples, taken pursuant to this chapter, to the United States Department of Justice DNA Data Bank Laboratory. The specimens and samples required by this chapter shall be taken in accordance with the procedures set forth in section -21. The department is authorized to analyze and upload specimens and samples collected pursuant to this section upon approval of the Director of the FBI.

§ -40 Retroactive application of sections -34 to    -39. Sections -34 to -39 shall have retroactive application. Collection shall occur pursuant to sections -34 to -39 regardless of when the crime charged or committed became a qualifying offense pursuant to this chapter, and regardless of when the person was convicted of the qualifying offense described in section -31(a) or a similar crime under the laws of the United States or any other state, or pursuant to the United States Code of Military Justice, or when disposition was rendered in the case of a juvenile who is adjudged a law violator, for commission of a qualifying offense described in section -31(a) or a similar crime under the laws of the United States or any other state.

§ -41 Collection of replacement specimen found spoiled or unusable; collection of specimen from sex offense registrants and out-of-state transferees. Whenever the department notifies the department of public safety or any other law enforcement agency that a biological specimen or sample, or print impression is not usable for any reason, the person who provided the original specimen, sample, or print impression shall submit to collection of additional specimens, samples, or print impressions. The department of public safety or other responsible law enforcement agency shall collect additional specimens, samples, and print impressions from these persons as necessary to fulfill the requirements of this chapter, and transmit these specimens, samples, and print impressions to the department.

§ -42 Collection of specimen from sex offense registrants. (a) If a person, including any juvenile, is convicted of, pleads guilty or no contest to, is found not guilty by reason of insanity of, or is adjudged a juvenile law violator, for committing any of the offenses requiring registration pursuant to chapter 846E, and has given a blood specimen or other biological sample or samples to law enforcement for any purpose, the department is authorized to analyze, or direct a designated entity to analyze, the blood specimen and other biological sample or samples for forensic identification markers, including DNA markers, and to include the DNA and forensic identification profiles from these specimens and samples in the State's DNA and forensic identification data bank and data bases.

(b) This subsection applies whether or not the blood specimen or other biological sample originally was collected from a sexual offender pursuant to the data bank and database program, and whether or not the crime committed predated the enactment of the State's DNA and forensic identification data bank program, or any amendments thereto. This subsection does not relieve a person convicted of a crime described in section -31(a), or otherwise subject to this chapter, from the requirement to give buccal swab samples and print impressions and, if required by the collecting agency's rules or internal regulations, any blood specimens, for the DNA and forensic identification data bank and database program as described in this chapter.

§ -43 Collection of specimen from persons required to register under chapter 846E who have not yet provided sample. (a) Any person who is required to register under chapter 846E who has not provided the specimens, samples, and print impressions described in this chapter for any reason including the release of the person prior to the enactment of the State's DNA and forensic identification data base and data bank program, an oversight or error, or because of the transfer of the person from another state, the person shall give specimens, samples, and print impressions as described in this chapter for inclusion in the State's DNA and forensic identification data base and data bank.

(b) At the time the person registers or updates the person's registration, the person shall receive an appointment designating a time and place for the collection of the specimens, samples, and print impressions described in this chapter, if the person has not already complied with this chapter.

(c) As specified in the appointment, the person shall report to a correctional facility in the county where the person resides or is temporarily located to have specimens, samples, and print impressions collected pursuant to this chapter or other facility approved by the department for this collection. The specimens, samples, and print impressions shall be collected in accordance with this chapter.

(d) If, prior to the time of the required registration update, a person is notified by the department, a probation or parole officer, other law enforcement officer, or officer of the court, that the person is subject to this chapter, then the person shall, at a correctional facility or other facility approved by the department for this collection, provide the specimens, samples, and print impressions required by this chapter within ten calendar days of the notification.

§ -51 Analysis of crime scene samples. (a) Entities that are authorized to analyze crime scene samples and other samples of known and unknown origin and to compare and check the forensic identification profiles, including DNA profiles, of these samples against available DNA and forensic identification data banks and databases in order to establish identity and origin of samples for identification purposes are:

§ -52 Anonymous analysis of specimens and samples. Laboratories, including law enforcement laboratories, that are accredited by American Society of Crime Laboratory Directors Laboratory Accreditation Board or any certifying body approved by the Laboratory Accreditation Board who contract with the department are authorized to perform anonymous analysis of specimens and samples for forensic identification as provided in this chapter.

§ -53 Analysis of forensic identification profiles. A biological sample obtained from a suspect in a criminal investigation for the commission of any crime may be analyzed for forensic identification profiles, including DNA profiles, by any private or law enforcement crime laboratory accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board or any certifying body approved by the Laboratory Accreditation Board and then compared by the department, in and between, as many cases and investigations as necessary, and searched against the forensic identification profiles, including DNA profiles, stored in the files of the department's DNA data bank or database or any available data banks or databases as part of the department DNA database and data bank program. The law enforcement investigating agency submitting a specimen, sample, or print impression to the department or law enforcement crime laboratory pursuant to this section shall inform the department within two years whether the person remains a suspect in a criminal investigation. Upon written notification from a law enforcement agency that a person is no longer a suspect in a criminal investigation, the department shall remove the suspect sample from its data bank files. However, any identification, warrant, arrest, or prosecution based upon a data bank or database match shall not be invalidated or dismissed due to a failure to purge or delay in purging records.

§ -54 Laboratories contributing DNA profiles to be accredited. All laboratories contributing DNA profiles for inclusion in Hawaii's DNA data bank shall be accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board or any certifying body approved by the Laboratory Accreditation Board. Additionally, each laboratory shall submit to the department for review the annual report required by the American Society of Crime Laboratory Directors Laboratory Accreditation Board or any certifying body approved by the Laboratory Accreditation Board that documents the laboratory's adherence to American Society of Crime Laboratory Directors Laboratory Accreditation Board standards or the standards of any certifying body approved by the Laboratory Accreditation Board. The requirements of this subsection do not preclude DNA profiles developed in Hawaii from being searched in the national DNA database or data bank such as the FBI's Combined DNA Index System.

§ -55 Other law enforcement DNA laboratories. Nothing in this section precludes other law enforcement DNA laboratories from maintaining local forensic databases and data banks or performing forensic identification analyses, including DNA profiling, independent from the department's DNA and forensic identification database and data bank program.

§ -56 Limitations not cause for dismissal. The limitation on the types of offenses set forth in section    -31(a), as subject to the collection and testing procedures of this chapter is for the purpose of facilitating the administration of this chapter by the department, and shall not be considered cause for dismissing an investigation or prosecution or reversing a verdict or a disposition.

§ -57 No invalidation based on erroneous placement or retention of specimens, samples, or print impressions. The detention, arrest, wardship, adjudication, or conviction of a person based upon a data bank match or database information is not invalidated if it is determined that the specimens, samples, or print impressions were obtained or placed or retained in a data bank or database by mistake.

§ -61 Blood specimens, buccal swab samples, and print impressions shall be forwarded promptly to the department. The director of public safety, the chief of police, or the administrator of the correctional facility, jail, or other facility at which the blood specimens, buccal swab samples, and print impressions were collected shall cause these specimens, samples, and print impressions to be forwarded promptly to the department. The specimens, samples, and print impressions shall be collected by a person using a department approved collection kit and in accordance with the requirements and procedures set forth in section -62.

§ -62 Procedures for the collection and forwarding of samples. (a) The department shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the department for analysis of DNA and other forensic identification markers. Additionally, the department shall provide all print impression cards, mailing envelopes, and instructions for the collection of print impressions. The print impressions, on a form prescribed by the department, shall thereafter be forwarded to the department for maintenance in a file for identification purposes.

(b) Whenever withdrawal of blood is required by this chapter or by the collecting agency's rules or internal regulations, the withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certified to draw blood may withdraw the blood specimens for purposes of this chapter.

(c) Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.

(d) Print impressions of each hand shall be taken on forms prescribed by the department. The print impression forms shall be forwarded to and maintained by the department. Print impressions taken at the time of the collection of samples and specimens and shall be placed on the samples and specimens container and forms as directed by the department. The samples and specimens and forms shall be forwarded to and maintained by the department.

(e) The law enforcement or custodial agency collecting specimens, samples, or print impressions is responsible for confirming that the person qualifies for entry into the department's DNA database and data bank program prior to collecting the specimens, samples or print impressions pursuant to this chapter.

(f) The department is responsible for establishing procedures for entering data bank and database information.

§ -63 Limitations on civil and criminal liability. (a) Persons authorized to draw blood or obtain samples or print impressions under this chapter for the data bank or database shall not be civilly or criminally liable either for withdrawing blood when done in accordance with medically accepted procedures, or for obtaining buccal swab samples by scraping inner cheek cells of the mouth, or print impressions when performed in accordance with standard professional practices;

(b) There is no civil or criminal cause of action against any law enforcement agency or the department, or any employee thereof, for a mistake in confirming a person's or sample's qualifying status for inclusion within the database or data bank or in placing an entry in a data bank or a database; and

(c) The failure of the department or local law enforcement to comply with this chapter shall not invalidate an arrest, plea, conviction, or disposition.

§ -64 Processing of offender specimens. (a) To ensure expeditious and economical processing of offender specimens and samples for inclusion in the FBI's Combined DNA Index System and the State's DNA database and data bank program, the department is authorized to contract with other laboratories, whether public or private, including law enforcement laboratories, that have the capability of fully analyzing offender specimens or samples within sixty days of receipt, for the anonymous analysis of specimens and samples for forensic identification testing as provided in this chapter and in accordance with the quality assurance requirement established by the FBI for its Combined DNA Index System and the American Society of Crime Laboratory Directors Laboratory Accreditation Board.

(b) Contingent upon the availability of sufficient funds, the department shall immediately contract with other laboratories, whether public or private, including law enforcement laboratories, for the anonymous analysis of offender reference specimens or samples and any arrestee reference specimens or samples collected pursuant to section -31(a), for forensic identification testing as provided in subsection (a) of this section and in accordance with the quality assurance requirements established by the FBI for its Combined DNA Index System and the American Society of Crime Laboratory Directors Laboratory Accreditation Board for any specimens or samples that are not fully analyzed and uploaded into the Combined DNA Index System database within six months of the receipt of the reference specimens or samples by the department.

§ -71 Person with no past or present offense or pending charge which qualifies that person for inclusion within the State's DNA and forensic identification database and data bank program. A person whose DNA profile has been included in the data bank pursuant to this chapter shall have the person's DNA specimen and sample destroyed and searchable database profile expunged from the data bank program pursuant to the procedures set forth in section -72 if the person has no past or present offense or pending charge which qualifies that person for inclusion within the State's DNA and forensic identification database and data bank program and there otherwise is no legal basis for retaining the specimen or sample or searchable profile.

§ -72 Written request to have the person's specimen and sample destroyed and searchable database profile expunged from the data bank program. (a) Pursuant to section -71, a person who has no past or present qualifying offense and for whom there otherwise is no legal basis for retaining the specimen or sample or searchable profile, may make a written request to have the person's specimen and sample destroyed and searchable database profile expunged from the data bank program if:

(b) The person requesting the data bank entry to be expunged must send a copy of the person's request to the trial court of the circuit where the arrest occurred or that entered the conviction or rendered disposition in the case, to the department, and to the prosecuting attorney of the county in which the person was arrested, convicted, or adjudicated, with proof of service on all parties. The court has the discretion to grant or deny the request for expungement. The denial of a request for expungement is a nonappealable order and shall not be reviewed by petition for writ.

§ -73 Destruction of samples and expungement of searchable DNA database profile. (a) Except as provided below, the department shall destroy the sample and expunge the searchable DNA database profile pertaining to the person who has no present or past qualifying offense of record upon receipt of a court order that verifies the applicant has made the necessary showing at a noticed hearing, and that includes all of the following:

(b) Upon order of the court, the department shall destroy any specimen or sample collected from the person and any searchable DNA database profile pertaining to the person, unless the department determines that the person is subject to the provisions of this chapter because of a past qualifying offense of record or is, or has otherwise become, obligated to submit a blood specimen or buccal swab as a result of a separate conviction, juvenile adjudication, or finding of guilty or not guilty by reason of insanity for an offense described in section -31, or as a condition of a plea.

(c) The department is not required to destroy an autoradiograph or other item obtained from a blood specimen if evidence relating to another person subject to the provisions of this chapter would thereby be destroyed.

(d) Any identification, warrant, probable cause to arrest, or arrest based upon a data bank match is not invalidated due to a failure to expunge or a delay in expunging records.

(e) Notwithstanding any other provision of law, the designated entity is not required to expunge DNA profile or forensic identification information or destroy or return specimens, samples, or print impressions taken pursuant to this section based on a termination of a person's duty to register pursuant to chapter 846E.

§ -74 No authorization to relieve a person of administrative duty to provide specimens, samples, or print impressions. Notwithstanding any other provision of law, a judge is not authorized to relieve a person of the separate administrative duty to provide specimens, samples, or print impressions required by this chapter if a person has been found guilty or was adjudicated to be a law violator by a trier of fact of a qualifying offense as defined in section -31, or was found not guilty by reason of insanity or pleads no contest to a qualifying offense as defined in section -31, or is given a deferred acceptance of plea under chapter 853.

§ -75 Not a basis for invalidation of identification or suppression of identification evidence. Nothing in this part shall be construed to invalidate an otherwise valid identification of a person by means of DNA testing or to provide the basis for a suppression of otherwise admissible evidence related to identification of a person based on DNA testing.

§ -81 Exemption of specimen from disclosure. (a) All DNA and forensic identification profiles and other identification information retained by the department pursuant to this chapter are exempt from any law requiring disclosure of information to the public and shall be confidential except as otherwise provided in this chapter.

(b) All evidence and forensic samples containing biological material retained by the department or other state or local law enforcement agency are exempt from any law requiring disclosure of information to the public or the return of biological specimens, samples, or print impressions.

§ -82 Confidentiality. (a) Non-DNA forensic identification information may be filed with the other computerized data bank or database systems maintained by the department.

(b) The DNA and other forensic identification information retained by the department pursuant to this chapter shall not be included in the state summary criminal history information. However, nothing in this chapter precludes law enforcement personnel from entering into a person's criminal history information or offender file maintained by the department, the fact that the specimens, samples, and print impressions required by this chapter have or have not been collected from that person.

(c) The fact that the blood specimens, buccal swab samples, and print impressions required by this chapter have been received by the department shall be included in the state summary criminal history information as soon as administratively practicable.

(d) The print impressions of each hand shall be filed and maintained by the department, and may be included in the state summary criminal history information.

(e) DNA samples and DNA profiles and other forensic identification information shall be released only to law enforcement agencies, including, but not limited to, the department of the attorney general, parole officers of the department of public safety, hearing officers of the parole authority, probation officers, the department, and prosecuting attorneys' offices, unless otherwise specifically authorized this chapter.

(f) Dissemination of DNA specimens, samples, and DNA profiles, and other forensic identification information to law enforcement agencies and prosecutors outside this State shall be performed in conformity with the provisions of this chapter.

(g) A defendant's DNA and other forensic identification information developed pursuant to this chapter shall be available to the person's defense counsel upon court order.

(h) Except as provided in subsection (g) and in order to protect the confidentiality and privacy of database and data bank information, the department and DNA laboratories shall not otherwise be compelled in a criminal or civil proceeding to provide any DNA profile or forensic identification database or data bank information or its computer database program software or structures to any person or party seeking such records or information whether by subpoena or discovery, or other procedural device or inquiry.

§ -83 Knowing use or disclosure, by employee of the department, of an offender a specimen, sample, or DNA profile collected pursuant to this chapter for other than criminal identification or exclusion purposes. (a) If any employee of the department knowingly uses an offender specimen, sample, or DNA profile collected pursuant to this chapter for other than criminal identification or exclusion purposes, or knowingly discloses DNA or other forensic identification information developed pursuant to this section to an unauthorized individual or agency, for other than criminal identification or exclusion purposes or for other than the identification of missing persons, in violation of this chapter, the department shall be liable in civil damages to the donor of the DNA identification information in the amount of $5,000 for each violation, plus attorney's fees and costs. In the event of multiple disclosures, the total damages available to the donor of the DNA is limited to $50,000 plus attorney's fees and costs.

(b) Notwithstanding any other law, this shall be the sole and exclusive remedy against the department and its employees available to the donor of the DNA. The department's employee disclosing DNA identification information in violation of this chapter shall be absolutely immune from civil liability under this or any other law.

§ -84 When disclosure is not a violation. (a) It is not a violation of this chapter for a law enforcement agency, in its discretion, to publicly disclose the fact of a DNA profile match, or the name of the person identified by the DNA match when this match is the basis of law enforcement's investigation, arrest, or prosecution of a particular person, or the identification of a missing or abducted person.

(b) It is not a violation of this chapter to furnish DNA or other forensic identification information of the defendant to the person's defense counsel for criminal defense purposes in compliance with discovery.

(c) It is not a violation of this chapter for law enforcement to release DNA and other forensic identification information developed pursuant to this chapter to a jury or grand jury, or in a document filed with a court or administrative agency, or as part of a judicial or administrative proceeding, or for this information to become part of the public transcript or record of proceedings when, in the discretion of law enforcement, disclosure is necessary because the DNA information pertains to the basis for law enforcement's identification, arrest, investigation, prosecution, or exclusion of a particular person related to the case.

(d) It is not a violation of this chapter to include information obtained from a file in a transcript or record of a judicial proceeding, or in any other public record when the inclusion of the information in the public record is authorized by a court, statute, or decisional law.

(e) It is not a violation of this chapter for the department, or an organization retained as an agent of the department, or a local public laboratory to use anonymous records or criminal history information obtained pursuant to this chapter for training, research, statistical analysis of populations, or quality assurance or quality control.

§ -85 Methodology and procedures to be made public. The department shall make public the methodology and procedures to be used in its DNA program prior to the commencement of DNA testing in its laboratories or thirty days after the effective date of this chapter, whichever is later. The department shall review and consider on an ongoing basis the findings and results of any peer review and validation studies submitted to the department by members of the relevant scientific community experienced in the use of DNA technology. This material shall be available to criminal defense counsel upon court order.

§ -86 Confidentiality of computer software and database structures. In order to maintain the computer system security of the department's DNA and forensic identification database and databank program, the computer software and database structures used by the DNA laboratory of the department to implement this chapter are confidential.

§ -91 Department permitted to share data, information, and samples. (a) Nothing in this chapter shall prohibit the department from the sharing or disseminating of population database or data bank information or DNA profile or forensic identification database or data bank information or analytical data and results generated for forensic identification database and data bank purposes or protocol and forensic DNA analysis methods and quality assurance or quality control procedures with any of the following:

(b) The population databases and data banks of the department may be made available to and searched by the FBI and any other agency participating in the FBI's Combined DNA Index System or any other national or international law enforcement database or data bank system.

(c) The department may provide portions of biological samples, including blood specimens, saliva samples, and buccal swab samples collected pursuant to this chapter to local public law enforcement DNA laboratories for identification purposes provided that the privacy provisions of this section are followed by the local public law enforcement laboratory and if each of the following conditions is met:

§ -92 Local DNA laboratories. Any local DNA laboratory that produces DNA profiles of known reference samples for inclusion within the permanent files of the State's DNA data bank program shall follow the instructions of the department for production of DNA profiles.

§ -93 Disposal of unused and expired specimens. The department is authorized to dispose of unused specimens and samples, unused portions of specimens and samples, and expired specimens and samples in the normal course of business and in compliance with part XI of this chapter and in a reasonable manner as long as the disposal method is designed to protect the identity and origin of specimens and samples from disclosure to third persons who are not a part of law enforcement.

§ -101 Law enforcement officer powers under other laws not affected. Nothing in this chapter shall limit or abrogate any existing authority of law enforcement officers to take, maintain, store, and utilize DNA or forensic identification markers, blood specimens, buccal swab samples, saliva samples, or print impressions for identification purposes.

§ -102 Authority under other laws not affected. (a) Nothing in this chapter shall be construed to restrict the authority of local law enforcement to maintain its own DNA-related databases or data banks, or to restrict the department with respect to data banks and databases created by other statutory authority, including, but not limited to, databases related to fingerprints, firearms and other weapons, child abuse, domestic violence deaths, child deaths, driving offenses, missing persons, sex offender registration, and criminal justice statistic.

(b) Nothing in this chapter shall be construed to limit the authority of the medical examiner of the city and county of Honolulu or county coroners or their agents, in the course of their scientific investigation, to utilize genetic and DNA technology to inquire into and determine the circumstances, manner, and cause of death, or to employ or use outside laboratories, hospitals, or research institutions that utilize genetic and DNA technology.

§ -111 Refusal or failure to provide specimen for forensic identification. (a) A person commits the offense of refusal or failure to provide specimen for forensic identification if the person refuses or fails to give any of the blood specimens, buccal swab samples, print impressions required by this chapter, after the person has received written notice from the department, the department of public safety, any law enforcement personnel, or officer of the court that the person is required to provide each and every one of the blood specimens, buccal swab samples, and print impressions required by this chapter.

(b) Refusal or failure to provide specimen for forensic identification is a misdemeanor.

§ -112 Fraudulent use or manipulation of biometric sample or information. (a) A person commits the offense of fraudulent use or manipulation of biometric sample or information if the person is required to submit a specimen sample or print impression pursuant to this chapter and intentionally or knowingly:

(b) Fraudulent use or manipulation of biometric sample or information is a class C felony.

§ -113 Unauthorized disclosure of DNA sample or profile. (a) A person commits the offense of unauthorized disclosure of DNA sample or profile if the person intentionally or knowingly, in violation of this chapter:

(b) Unauthorized disclosure of DNA sample or profile purposes is a misdemeanor.

§ -114 Use of DNA sample or profile for financial gain. (a) A person commits the offense of use of DNA sample or profile for financial gain if the person, for the purpose of financial gain, intentionally or knowingly, in violation of this chapter:

(b) Use of DNA sample or profile for financial gain is a misdemeanor for which, in addition to any other penalty provided by the penal code for a misdemeanor, a fine shall be imposed that is an amount three times that of any financial gain received or $10,000, whichever is greater.

§ -121 Petition for postconviction DNA testing. Notwithstanding any other provision of law governing postconviction relief, a person convicted of a crime may at any time file a petition requesting the forensic DNA testing of any evidence that was secured in relation to the investigation or prosecution that resulted in the judgment of conviction, and that may contain biological evidence. Persons eligible for testing shall include any and all of the following:

§ -122 Proceedings. The petitioner shall be granted full, fair, and prompt proceedings upon the filing of a motion under this part. The petitioner shall serve a copy of such motion upon the attorney for the State. The State shall file its response to the motion within thirty days of the receipt of service. The court shall, no sooner than thirty and no later than ninety days after such motion is filed, hear the motion.

§ -123 Order for Postconviction DNA Testing. (a) Upon the filing of a motion for postconviction DNA testing the court shall provide the State with notice and an opportunity to respond.

(b) After a hearing on the motion, the court shall order testing if it finds that:

§ -124 Counsel. (a) The court may, at any time, during proceedings under this part, appoint counsel for an indigent petitioner.

(b) If the petitioner has filed pro se, upon a showing that DNA testing may be material to the petitioner's claim of wrongful conviction, the court shall appoint counsel for the petitioner.

(c) The Court, in its discretion, may refer pro se requests for DNA testing to qualified parties for further review, including, but not limited to, indigent defense organizations or clinical legal education programs, without appointing the parties as counsel at that time.

(d) If the petitioner has retained private pro bono counsel (including, but not limited to, counsel from a nonprofit organization that represents indigent persons), the court may, in its discretion, award reasonable attorney's fees and costs at the conclusion of the litigation.

§ -125 Discovery. (a) At any time after a petition has been filed under this part, the court may order the following:

(b) If any DNA or other biological evidence testing was previously conducted by either the prosecution or defense without knowledge of the other party, such testing shall be revealed in the motion for testing or response, if any.

(c) If the court orders DNA testing in connection with a proceeding brought under this part, the court shall order the production of any laboratory reports prepared in connection with the DNA testing, and may in its discretion order production of the underlying data, bench notes, or other laboratory notes.

(d) The results of any postconviction DNA testing conducted under this part shall be disclosed to the prosecution, the petitioner, and the court.

§ -126 Preservation of evidence. (a) Notwithstanding any other provision of law, all appropriate governmental entities shall retain all items of physical evidence that contain biological material that is secured in connection with a criminal case for the period of time that any person remains incarcerated, on probation or parole, civilly committed, or subject to registration as a sex offender in connection with that case unless a court order permits the destruction of such items. This requirement shall apply with or without the filing of a petition for postconviction DNA testing, as well as during the pendency of proceedings under this part. The agency or court authorizing the release of a person from incarceration, parole, probation, or civil commitment, or release from sex offender registration requirements, shall notify in writing the agency in custody of any physical evidence related to the released person's custody as soon as practicable after the release of the person. In cases where a petition for postconviction DNA testing has been filed under this part, the State shall prepare an inventory of the evidence related to the case and submit a copy of the inventory to the defense and the court. If evidence is intentionally destroyed after the filing of a petition under this part, the court may impose appropriate sanctions on the responsible party or parties.

(b) For the purposes of this section, "biological evidence" means:

§ -127 Choice of laboratory. If the court orders DNA testing, such testing shall be conducted by a facility mutually agreed upon by the petitioner and by the State and approved by the court. If the parties are unable to agree, the court shall designate the testing facility and provide parties with a reasonable opportunity to be heard on the issue of choice of laboratory. The court shall impose reasonable conditions on the testing to protect the parties' interests in the integrity of the evidence and the testing process.

§ -128 Payment. If DNA testing under this part is performed at a state or county crime laboratory, the State shall bear the costs of such testing. If testing is performed at a private laboratory, the court may require either the petitioner or the State to pay for the testing, as the interests of justice require. If the state or county crime laboratory does not have the ability or resources to conduct the type of DNA testing to be performed, the State shall bear the costs of testing at a private laboratory that does have such capabilities.

§ -129 Appeal. The petitioner shall have the right to appeal a decision denying postconviction DNA testing.

§ -130 Successive petitions. (a) If the petitioner has filed a prior petition for DNA testing under this part or any other provision of law, the petitioner may file, and the court shall adjudicate, a successive petition or petitions under this part; provided that the petitioner asserts new or different grounds for relief, including, but not limited to, factual, scientific, or legal arguments not previously presented, or the availability of more advanced DNA technology.

(b) The court may also, in its discretion, adjudicate any successive petition if the interests of justice so require.

§ -131 Additional Orders. (a) The court may in its discretion make such other orders as may be appropriate. This includes, but is not limited to, designating:

The collection and DNA testing of elimination samples from third parties.

(b) DNA profile information from biological samples taken

from any person pursuant to a motion for postconviction DNA testing shall be exempt from any law requiring disclosure of information to the public.

§ -132 Procedure after testing results are obtained. (a) If the results of forensic DNA testing ordered under this part are favorable to the petitioner, the court shall schedule a hearing to determine the appropriate relief to be granted. Based on the results of the testing and any evidence or other matter presented at the hearing, the court shall thereafter enter any order that serves the interests of justice, including any of the following:

(b) If the results of the tests are not favorable to the petitioner, the court:

§ -133 Consent. Nothing in this part shall be interpreted to prohibit a convicted person and the State from consenting to and conducting postconviction DNA testing by agreement of the parties and without filing a motion for postconviction DNA testing under this part. Notwithstanding any other provision of law governing postconviction relief, if DNA test results are obtained under testing conducted upon consent of the parties which are favorable to the petitioner, the petitioner may file, and the court shall adjudicate, a motion for postconviction relief under the provisions of this part, based on the DNA test results."

SECTION 3. Section 701-108, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:

"(3) If the period prescribed in subsection (2) has expired, a prosecution may nevertheless be commenced for:

SECTION 4. Section 701-118, Hawaii Revised Statutes, is amended by amending the definition of "person," "he," "him," "actor," and "defendant" to read as follows:

"(7) "Person," "he," "him," "actor," and "defendant" include any natural person, including any natural person whose identity can be established by means of scientific analysis, including, but not limited to, scientific analysis of DNA and fingerprints, whether or not the natural person's name is known, and, where relevant, a corporation or an unincorporated association;"

SECTION 5. Section 706-603, Hawaii Revised Statutes, is amended to read as follows:

"§706-603 [Mental and medical examination; deoxyribonucleic acid collection. (1) As used in this section, unless the context otherwise requires:

"Conviction" means that a verdict has been rendered by a judge or jury, or a plea of guilty or nolo contendere has been accepted by the court.

"DNA" means deoxyribonucleic acid.

"Licensed psychologist" means psychologists licensed under chapter 465 but also includes psychologists exempt from licensure under section 465-3(a)(3).

"Sexual offense" means an offense as defined in chapter 846E as a sexually violent offense or a criminal offense against a victim who is a minor.

"Violent offense" means murder, or attempted murder, in any degree.

(2) Before imposing sentence, the court may order a defendant who has been convicted of a felony or misdemeanor to submit to mental or other medical observation and examination for a period not exceeding sixty days or a longer period, not to exceed the length of permissible imprisonment, as the court determines to be necessary for the purpose. In addition thereto or in the alternative, the court may appoint one or more qualified psychiatrists, physicians, or licensed psychologists to make the examination. The examiner or examiners shall be appointed from a list of certified examiners as determined by the state department of health. The report of the examination shall be submitted to the court.

(3) After entry of a plea of guilty or no contest or return of a verdict of guilty, a defendant who has been convicted of a sexual or violent offense shall provide two samples of blood for DNA analysis.

(4) A defendant who has been convicted of a sexual or violent offense and who is in custody at a jail, prison, hospital, school, or other institution shall provide two samples of blood for DNA analysis. The person in charge of such an institution, or that person's designee, shall arrange for the sample to be collected and analyzed.

(5) A defendant who has been convicted of a sexual or violent offense and who is not in custody shall report in person to any police station in the county in which the defendant resides or is present to schedule an appointment to provide two samples of blood for DNA analysis. A defendant required to report to a police station under this subsection shall do so within:

(6) A defendant who has been charged with a sexual or violent offense and who has been found unfit to proceed or acquitted pursuant to chapter 704, or any state, federal, or military law similar to chapter 704 shall provide two samples of blood for DNA analysis. The person in charge of the jail, prison, hospital, school, or other institution where the defendant is in custody, or that person's designee, shall arrange for the sample to be collected and analyzed. A defendant who is not in custody and who is required to provide blood under this subsection shall report in person to any police station in the county in which the defendant resides or is present to schedule an appointment to provide two samples of blood. A defendant required to report to a police station under this subsection shall do so within:

(c) Thirty days after arrival in the State,

if the defendant resides or expects to be present in the State for a period exceeding thirty days.

(7) Blood withdrawn pursuant to this section shall be withdrawn only by a person authorized to withdraw blood under section 291E-12. The results shall be recorded, preserved, and disseminated in a manner consistent with the requirements of chapter 846. A defendant who has already provided the necessary samples of blood pursuant to this section shall be relieved of any further requirement to provide blood for DNA analysis, unless the court orders otherwise.

(8)] DNA analysis monetary assessment; DNA registry special fund. (1) In addition to any disposition authorized by chapter 706 or 853, [a] every defendant convicted of [a sexual or violent]:

[(9)] (2) There is established a special fund to be known as the DNA registry special fund which shall be administered by the attorney general. The fund shall consist of:

Moneys in the DNA registry special fund shall be used for DNA collection, DNA testing, and related costs of recording, preserving, and disseminating DNA information pursuant to this section[.] and chapter .

[(10)] (3) Restitution to the victim of a sexual or violent crime shall be made before payment of the monetary assessment.

[(11) Any person required to provide blood samples under this section who negligently or recklessly fails to comply shall be guilty of a misdemeanor; and any person who intentionally or knowingly fails to provide blood samples under this section shall be guilty of a class C felony.]"

SECTION 6. There is appropriated out of the DNA registry special fund, created in section 706-603, Hawaii Revised Statutes, the sum of $550,000, or so much thereof as may be necessary, for fiscal year 2005-2006 to carry out the purposes of this Act. The sum appropriated shall be expended by the department of the attorney general to carry out the purposes of this Act including, but not limited to, reimbursement to the county police departments and the department of public safety for costs incurred in carrying out the purposes of this Act.

SECTION 7. There is appropriated out of the general revenues of the State of Hawaii the sum of $200,000, or so much thereof as may be necessary for fiscal year 2005-2006, to be deposited into the DNA registry special fund. The sum appropriated shall be expended by the department of the attorney general to carry out the purposes of this Act including, but not limited to, reimbursement to the county police departments and the department of public safety for costs incurred in carrying out the purposes of this Act.

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect upon its approval.