THE SENATE	S.B. NO.	2615
TWENTY-SEVENTH LEGISLATURE, 2014
STATE OF HAWAII

A BILL FOR AN ACT

relating to DNA collection for violent crimes.

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

     SECTION 1.  The legislature finds that there is a growing trend towards collecting DNA from persons who are arrested for felonies.  While all states require DNA collection for felony convictions, most states have begun considering bills to require collection for felony arrests.  Twenty-three states have already enacted such legislation.

     Forensic DNA testing is a vastly more precise and reliable means of human identification than other methods, including fingerprinting.  By collecting DNA from arrestees, law enforcement can identify criminals earlier and create more efficient investigation practices.  Virginia, which implemented DNA collection for arrestees in 2003, has matched more than six hundred arrestees to unsolved crimes.

     The legislature further finds that all of the arguments in support of the enactment of chapter 844D, Hawaii Revised Statutes, are the same arguments for the enactment of legislation calling for the collection of DNA upon arrest for violent felonies — the ability to solve cold cases, saving lives, and preventing subsequent violent crimes by providing early identification of serial offenders, absolving the innocent, minimizing wrongful incarceration, minimizing racial bias, and reducing law enforcement costs.  Accordingly, the purpose of this Act is to:

     (1)  Mandate DNA collection for all persons arrested for the commission of a violent felony; and

     (2)  Provide for the expungement of DNA records, in certain circumstances, when an individual is not convicted of a felony.

     SECTION 2.  Section 831-3.2, Hawaii Revised Statutes, is amended to read as follows:

"§831-3.2  Expungement orders.  (a)  The attorney general, or the attorney general's duly authorized representative within the department of the attorney general, upon written application from a person arrested for, or charged with but not convicted of a crime, shall issue an expungement order annulling, canceling, and rescinding the record of arrest; provided that an expungement order shall not be issued:

     (1)  In the case of an arrest for a felony or misdemeanor where conviction has not been obtained because of bail forfeiture;

     (2)  For a period of five years after arrest or citation in the case of a petty misdemeanor or violation where conviction has not been obtained because of a bail forfeiture;

     (3)  In the case of an arrest of any person for any offense where conviction has not been obtained because the person has rendered prosecution impossible by absenting oneself from the jurisdiction;

     (4)  In the case of a person acquitted by reason of a mental or physical defect under chapter 704; and

     (5)  For a period of one year upon discharge of the defendant and dismissal of the charge against the defendant in the case of a deferred acceptance of guilty plea or nolo contendere plea, in accordance with chapter 853.

     Any person entitled to an expungement order hereunder may, by written application, also request the return or destruction of all fingerprints, DNA samples or specimens, or photographs taken in connection with the person's arrest. 

(b)  The attorney general or the attorney general's duly authorized representative within the department of the attorney general, within 120 days after receipt of the written application, shall[, when]:

(1) When so requested, deliver, or cause to be delivered, all fingerprints or photographs of the person, unless the person has a record of conviction or is a fugitive from justice, in which case the photographs or fingerprints may be retained by the agencies holding such records[.]; and

(2) Forward the application to the police department of the city and county of Honolulu for the expungement of DNA information from the state DNA database and data bank identification program and destruction of DNA samples in accordance with sections 844D-71 and 844D‑72, respectively.

     [(b)] (c)  Upon the issuance of the expungement certificate, the person applying for the order shall be treated as not having been arrested in all respects not otherwise provided for in this section.

     [(c)] (d)  Upon the issuance of the expungement order, all arrest records pertaining to the arrest which are in the custody or control of any law enforcement agency of the state or any county government, and which are capable of being forwarded to the attorney general without affecting other records not pertaining to the arrest, shall be so forwarded for placement of the arrest records in a confidential file.

     [(d)] (e)  Records filed under subsection [(c)] (d) shall not be divulged except upon inquiry by:

     (1)  A court of law or an agency thereof which is preparing a presentence investigation for the court;

     (2)  An agency of the federal or state government which is considering the subject person for a position immediately and directly affecting the national or state security; or

     (3)  A law enforcement agency acting within the scope of their duties.

Response to any other inquiry shall not be different from responses made about persons who have no arrest records.

     [(e)] (f)  The attorney general or the attorney general's duly authorized representative within the department of the attorney general shall issue to the person for whom an expungement order has been entered, a certificate stating that the order has been issued and that its effect is to annul the record of a specific arrest.  The certificate shall authorize the person to state, in response to any question or inquiry, whether or not under oath, that the person has no record regarding the specific arrest.  Such a statement shall not make the person subject to any action for perjury, civil suit, discharge from employment, or any other adverse action.

     [(f)] (g)  [The meaning of the following terms as] As used in this section [shall be as indicated]:

    [(1) "Conviction" means a final determination of guilt whether by plea of the accused in open court, by verdict of the jury or by decision of the court.

(2)] "Arrest record" means any existing [photographic and]

photographs, DNA samples, specimens, profile, or fingerprint cards relating to the arrest.

"Conviction" means a final determination of guilt whether by plea of the accused in open court, by verdict of the jury, or by decision of the court.

"DNA" means deoxyribonucleic acid.

     [(g)] (h)  The attorney general shall adopt rules pursuant to chapter 91 necessary for the purpose of this section.

     [(h)] (i)  Nothing in this section shall affect the compilation of crime statistics or information stored or disseminated as provided in chapter 846."

     SECTION 3.  Section 844D-31, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Any person, except for any juvenile, who [is]:

(1) Is convicted of[, or pleads] any felony offense;

(2) Pleads guilty or no contest to[,] any felony offense, even if the plea is deferred[, or is];

(3) Is found not guilty by reason of insanity of any felony offense[,]; or

(4) Is arrested for any felony offense involving a violent crime as defined in section 351-32;

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."

     SECTION 4.  Section 844D-34, Hawaii Revised Statutes, is amended to read as follows:

"[[]§844D-34[]]  Collection from persons confined or in custody after arrest, conviction, or adjudication.  A person, except for any juvenile, 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 program if:

     (1)  The person is imprisoned or confined or placed in a state correctional facility, a county correctional facility, the department of public safety, a residential treatment program, or any state, county, private, or other facility after [a]:

(A) A conviction of any felony offense; or

(B) An arrest for any felony offense involving a violent crime as defined in section 351-32;

     (2)  The person has a record of any past or present conviction of a qualifying offense described in section 844D-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 844D-31; and

     (3)  The person's blood specimens or 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 state DNA database and data bank identification program."

     SECTION 5.  Section 844D-71, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:

     "(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 underlying conviction or disposition serving as the basis for including the DNA profile has been reversed and the case dismissed; 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 convicted or adjudicated, with proof of service on all parties[.]; provided that in cases where the specimen and sample were taken for an arrest for the commission or attempted commission of any felony offense involving a violent crime as defined in section 351-32, the person may request an expungement pursuant to section 831-3.2.

     (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.  This subsection shall not apply to requests for expungement pursuant to section 831-3.2."

     SECTION 6.  Section 844D-72, Hawaii Revised Statutes, is amended to read as follows:

"[[]§844D-72[]]  Destruction of samples and expungement of searchable DNA database profile.  (a)  Except as provided [below,] in this section, for requests for expungement pursuant to section 844D-71, 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:

     (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, or a letter from the prosecuting attorney certifying 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.

     (b)  Upon receipt of the order of the court pursuant to subsection (a), 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, or finding of guilty or not guilty by reason of insanity for an offense described in section 844D‑31, or as a condition of a plea.

(c)  Upon receipt by the department of a request for expungement pursuant to section 831-3.2, the department shall destroy the specimen or sample and expunge the searchable DNA database profile upon verification:

(1) From the court or prosecuting attorney that the charge for which the specimen or sample was taken is dismissed or the person was acquitted at trial; and

(2) That there is no other pending qualifying warrant for a felony arrest or felony conviction that would otherwise require that the sample remain in the state DNA database and databank identification program.

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

     [(e)] (f)  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."

     SECTION 7.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     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.

INTRODUCED BY:

_____________________________

Report Title:

Forensic Identification; DNA; Crime

Description:

Requires persons arrested for a felony offense involving a violent crime to provide DNA samples.  Provides for the expungement and destruction of DNA records under certain circumstances.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.