SB2335

SECTION 1. The legislature finds that unlike fingerprints, many states do not take DNA samples of persons arrested for serious crimes. Recently there has been a push to require that persons arrested for felony offenses provide DNA samples to help determine whether the arrestee has committed a rape or murder. As of 2007, eleven states have enacted laws to require that felony arrestees provide DNA samples.

The purpose of this Act is to require felony arrestees to provide buccal swab samples, hand print impressions, and blood specimens, when appropriate, for inclusion in the DNA database and data bank identification program. This Act also provides protections to allow arrestees to expunge these samples from the database and data bank identification program under certain circumstances.

SECTION 2 Chapter 844D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§844D-A Collection from persons arrested. (a) A person, except for any juvenile, who is arrested for the commission of any felony offense, shall provide buccal swab samples and print impressions for each hand, and, if required by the collecting agency's rules, or internal regulations, blood specimens required for law enforcement identification analysis.

(b) Specimens, samples, and print impressions shall not be required if it is determined that a specimen, sample, or print impression has previously been taken and is included in the state DNA database and data bank identification program."

SECTION 3. Section 844D-21, Hawaii Revised Statutes, is amended by amending the title and subsection (a) to read as follows:

"[[]§844D-21[]] Collection of specimens, samples, and print impressions at correctional facility or other detention facility. (a) When the specimens, samples, or print impressions required by this chapter are collected at a correctional facility or other detention facility, including private correctional facilities, the chief administrative officer of the correctional facility or other detention facility shall be responsible for ensuring that:

(1) The requisite specimens, samples, or print impressions are collected from qualifying offenders or arrestees during the intake process at that facility or reasonably promptly thereafter; or

(2) The requisite specimens, samples, or print impressions are collected as soon as administratively practicable after a qualifying offender or arrestee reports to the facility for the purpose of providing specimens, samples, and print impressions; and

(3) The specimens, samples, or print impressions collected pursuant to this chapter are forwarded immediately to the department and in compliance with this chapter."

SECTION 4. Section 844D-71, Hawaii Revised Statutes, is amended to read as follows:

"[[]§844D-71[]] Expungement of DNA information from state DNA database and data bank identification program. (a) A person whose DNA profile has been included in the state DNA database and data bank identification program pursuant to this chapter shall have the person's DNA specimen and sample destroyed and searchable database profile expunged from the program pursuant to section 844D-72 if:

(1) The person has no past or present offense [~~which~~] that qualifies that person for inclusion within the state DNA database and data bank identification program; [~~and~~]

(2) There otherwise is no legal basis for retaining the specimen or sample or searchable profile[.]; and

(3) The specimen, sample, or print impression was taken pursuant to section 844D-A and the arrest that led to the taking of the specimen, sample, or print impression:

(A) Has resulted in a felony charge that has been resolved by dismissal, nolle prosequi, a misdemeanor conviction, or acquittal; or

(B) Has not resulted in a felony charge within one year of the person's arrest.

(b) A person requesting expungement of their DNA specimen, sample, and profile:

(1) May make a written request to have the person's specimen and sample destroyed and searchable database profile expunged from the state DNA database and data bank identification program if [~~the~~]:

(A) The underlying conviction or disposition serving as the basis for including the DNA profile has been reversed and the case dismissed; [~~and~~] or

(B) The person's specimen, sample, or print impression falls within the purview of subsection (a)(3); and

(2) Shall send a copy of the person's request to the trial court of the circuit 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.

(c) A court considering a request for expungement made pursuant to this section, shall grant the request by order pursuant to section 844D-72(a) if the criteria for expungement under subsection (a) are met[.]; provided that a person's specimen, sample, print impression, or searchable database profile shall not be destroyed or expunged pursuant to section 844D-72 if the person has a prior felony conviction or pending felony charge."

SECTION 5. Section 844D-72, Hawaii Revised Statutes, is amended by amending the title and subsection (a) to read as follows:

"[[]§844D-72[]] Destruction of samples and expungement of searchable DNA database profile. (a) Except as provided below, the department shall destroy the sample, specimen, and print impressions and shall expunge the searchable DNA database profile pertaining to the person who has no present or past qualifying offense or arrest 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:

(1) The written request for expungement pursuant to section 844D‑71;

(2) A certified copy of the court order reversing and dismissing the conviction or case, a certified copy of the court order showing dismissal, nolle prosequi, a misdemeanor conviction, or acquittal, or a letter from the prosecuting attorney certifying that no felony charges arising out of the arrest have been filed within one year of the arrest or that the underlying conviction has been reversed and the case dismissed;

(3) A finding that written notice has been provided to the prosecuting attorney and the department of the request for expungement; and

(4) A court order verifying that no retrial or appeal of the case is pending, that it has been at least one hundred eighty days since the defendant or minor has notified the prosecuting attorney and the department of the expungement request, and that the court has not received an objection from the department or the prosecuting attorney."

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 9. In codifying the new section added by section 2 of this Act, the revisor of statutes shall substitute the appropriate section number for the letter used in designating the new section in this Act.

SECTION 10. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2335
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII