Chapter 852 Oregon Laws 2001

AN ACT

HB 2664

Relating to criminal procedure; creating new provisions; amending ORS 137.076, 181.085 and 419C.473; and appropriating money.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 137.076 is amended to read:

137.076. (1) This section applies to any person convicted of [one of the following offenses]:

(a) A felony;

[(a)] (b) [Rape, sodomy, unlawful sexual penetration,] Sexual abuse in the third degree or[,] public indecency[, incest or using a child in a display of sexually explicit conduct, as those offenses are defined in ORS 163.355 to 163.427, 163.465 (1)(c), 163.525 and 163.670];

[(b) Burglary in the second degree, as defined in ORS 164.215, when committed with intent to commit any offense listed in paragraph (a) of this subsection;]

[(c) Promoting or compelling prostitution, as defined in ORS 167.012 and 167.017;]

[(d) Burglary in the first degree, as defined in ORS 164.225;]

[(e) Assault in the first degree, as defined in ORS 163.185;]

[(f)] (c) Conspiracy or attempt to commit [any felony listed in paragraphs (a) to (e) of this subsection] rape in the third degree, sodomy in the third degree, sexual abuse in the second degree, burglary in the second degree or promoting prostitution; or

[(g)] (d) Murder or aggravated murder.

(2) When a person is convicted of an offense listed in subsection (1) of this section:

(a) The person shall, whether or not ordered to do so by the court under paragraph (b) of this subsection, provide a blood or buccal sample at the request of the appropriate agency designated in paragraph (c) of this subsection.

(b) The court shall include in the judgment of conviction an order stating that a blood or buccal sample is required to be obtained at the request of the appropriate agency and, unless the convicted person lacks the ability to pay, that the person shall reimburse the appropriate agency for the cost of obtaining and transmitting the blood or buccal sample. If the judgment sentences the convicted person to probation, the court shall order the convicted person to submit to the obtaining of a blood or buccal sample as a condition of the probation.

(c) The appropriate agency shall cause a blood or buccal sample to be obtained and transmitted to the Department of State Police. The agency shall cause the sample to be obtained as soon as practicable after conviction. The agency shall obtain the convicted person’s thumbprint at the same time the agency obtains the blood or buccal sample. The agency shall include the thumbprint with the identifying information that accompanies the sample. Whenever an agency is notified by the Department of State Police that a sample is not adequate for analysis, the agency shall obtain and transmit a blood sample. The appropriate agency shall be:

(A) The Department of Corrections, whenever the convicted person is committed to the legal and physical custody of the department.

(B) In all other cases, the law enforcement agency attending upon the court.

(3)(a) A blood sample may only be drawn in a medically acceptable manner by a licensed professional nurse, a licensed practical nurse, a qualified medical technician, a licensed physician or a person acting under the direction or control of a licensed physician.

(b) A buccal sample may be obtained by anyone authorized to do so by the appropriate agency. The person obtaining the buccal sample shall follow the collection procedures established by the Department of State Police.

(c) A person authorized by this subsection to obtain a blood or buccal sample shall not be held civilly liable for obtaining a sample in accordance with this subsection and subsection (2) of this section, ORS 161.325 and 419C.473. The sample shall also be obtained and transmitted in accordance with any procedures that may be established by the Department of State Police. However, no test result or opinion based upon a test result shall be rendered inadmissible as evidence solely because of deviations from procedures adopted by the Department of State Police that do not affect the reliability of the opinion or test result.

(4) No sample is required to be obtained if:

(a) The Department of State Police notifies the court or the appropriate agency that it has previously received an adequate blood or buccal sample obtained from the convicted person in accordance with this section or ORS 161.325 or 419C.473; or

(b) The court determines that obtaining a sample would create a substantial and unreasonable risk to the health of the convicted person.

(5) The provisions of subsections (1) to (4) of this section apply to any person who, on or after September 29, 1991, is serving a term of incarceration as a sentence or as a condition of probation imposed for conviction of an offense listed in subsection (1) of this section, and any such person shall submit to the obtaining of a blood or buccal sample. Before releasing any such person from incarceration, the supervisory authority shall cause a blood or buccal sample and the person’s thumbprint to be obtained and transmitted in accordance with subsections (1) to (4) of this section.

SECTION 2. (1) A supervisory authority shall obtain a blood or buccal sample from every person being supervised by the supervisory authority who is on parole, post-prison supervision or probation as a result of having been convicted of a felony other than:

(a) Rape, sodomy, unlawful sexual penetration, sex abuse in the first or second degree, incest or using a child in a display of sexually explicit conduct, as those offenses are defined in ORS 163.355 to 163.427, 163.525 and 163.670;

(b) Burglary in the second degree, as defined in ORS 164.215, when committed with intent to commit any offense listed in paragraph (a) of this subsection;

(c) Promoting or compelling prostitution, as defined in ORS 167.012 and 167.017;

(d) Burglary in the first degree, as defined in ORS 164.225;

(e) Assault in the first degree, as defined in ORS 163.185; or

(f) Conspiracy or attempt to commit a crime listed in paragraphs (a) to (e) of this subsection.

(2) The supervisory authority shall obtain the blood or buccal sample as soon as practicable after the effective date of this 2001 Act. In all cases, the blood or buccal sample must be obtained by June 30, 2002, or before the termination of the person’s parole, post-prison supervision or probation, whichever comes first. The supervisory authority shall transmit the blood or buccal sample to the Department of State Police.

(3) The requirement of subsection (1) of this section does not apply if a blood or buccal sample has previously been obtained from the person.

SECTION 3. ORS 181.085 is amended to read:

181.085. (1) The Department of State Police is authorized to:

(a) Store blood and buccal samples received under authority of this section, ORS 137.076, 161.325 and 419C.473 (1) and section 2 of this 2001 Act, and other physical evidence obtained from analysis of such samples;

(b) Analyze such samples for the purpose of establishing the genetic profile of the donor or otherwise determining the identity of persons or contract with other qualified public or private laboratories to conduct that analysis;

(d) Utilize such samples to create statistical population frequency databases, provided that genetic profiles or other such information in a population frequency database shall not be identified with specific individuals; and

(e) Adopt rules establishing procedures for obtaining, transmitting and analyzing blood and buccal samples and for storing and destroying blood and buccal samples and other physical evidence and criminal identification information obtained from such analysis. Procedures for blood and buccal analyses may include all techniques which the department [of State Police] determines are accurate and reliable in establishing identity, including but not limited to, analysis of DNA (deoxyribonucleic acid), antigen antibodies, polymorphic enzymes or polymorphic proteins.

(2) If the department is unable to analyze all samples due to lack of funds, the department shall analyze samples in the following order:

(a) The department shall first analyze samples from persons convicted of:

(A) Rape, sodomy, unlawful sexual penetration, sexual abuse, public indecency, incest or using a child in a display of sexually explicit conduct, as those offenses are defined in ORS 163.355 to 163.427, 163.465 (1)(c), 163.525 and 163.670;

(B) Burglary in the second degree, as defined in ORS 164.215;

(C) Promoting or compelling prostitution, as defined in ORS 167.012 and 167.017;

(D) Burglary in the first degree, as defined in ORS 164.225;

(E) Assault in the first, second or third degree, as defined in ORS 163.165, 163.175 and 163.185;

(F) Kidnapping in the first or second degree, as defined in ORS 163.225 and 163.235;

(G) Stalking, as defined in ORS 163.732;

(H) Robbery in the first, second or third degree, as defined in ORS 164.395, 164.405 and 164.415;

(I) Manslaughter in the first or second degree, as defined in ORS 163.118 and 163.125;

(J) Criminally negligent homicide, as defined in ORS 163.145;

(K) Conspiracy or attempt to commit any felony listed in subparagraphs (A) to (J) of this paragraph; or

(L) Murder, aggravated murder or an attempt to commit murder or aggravated murder.

(b) After analyzing samples from persons described in paragraph (a) of this subsection, the department shall analyze samples from persons convicted of a felony under ORS 475.992, 475.993, 475.995 or 475.999.

(c) After analyzing samples from persons described in paragraphs (a) and (b) of this subsection, the department shall analyze samples from persons convicted of any other felony.

(3) Notwithstanding subsection (2) of this section, the department may analyze a sample from a lower priority before all samples in higher priorities are analyzed if required in a particular case for law enforcement purposes.

[(2)] (4) The department [of State Police shall] may not transfer or disclose any sample, physical evidence or criminal identification information obtained, stored or maintained under authority of this section, ORS 137.076, 161.325 or 419C.473 (1) except:

(a) To a law enforcement agency as defined in ORS 181.010, a district attorney or the Criminal Justice Division of the Department of Justice for the purpose of establishing the identity of a person in the course of a criminal investigation or proceeding;

(b) To a party in a criminal prosecution or juvenile proceeding pursuant to ORS 419C.005 if discovery or disclosure is required by a separate statutory or constitutional provision; or

(c) To a court or grand jury in response to a lawful subpoena or court order when the evidence is not otherwise privileged and is necessary for criminal justice purposes.

(5) The department may not transfer or disclose any sample, physical evidence or criminal identification information under subsection (4) of this section unless the public agency or person receiving the sample, physical evidence or criminal identification information agrees to destroy the sample, physical evidence or criminal identification information if notified by the department that a court has reversed the conviction, judgment or order that created the obligation to provide the blood or buccal sample.

[(3)] (6) Any public agency that receives a sample, physical evidence or criminal identification information under authority of subsection [(2)] (4) of this section [shall] may not disclose it except as provided in subsection [(2)] (4) of this section.

[(4)] (7) Notwithstanding subsections [(2)] (4) and [(3)] (6) of this section, any person who is the subject of a record within a criminal identification database maintained under the authority of this section may, upon request, inspect that information at a time and location designated by the department. The department may deny inspection if it determines that there is a reasonable likelihood that such inspection would prejudice a pending criminal investigation. In any case, the department is not required to allow the person or anyone acting on the person’s behalf to test any blood or buccal sample or other physical evidence. The department shall adopt procedures governing the inspection of records and samples and challenges to the accuracy of records. The procedures shall accommodate the need to preserve the materials from contamination and destruction.

[(5)] (8)(a) Whenever a court reverses the conviction, judgment or order that created an obligation to provide a blood or buccal sample under ORS 137.076 (2), 161.325 or 419C.473 (1), the person who provided the sample may request destruction of the sample and any criminal identification record created in connection with that sample.

(b) Upon receipt of a written request for destruction pursuant to this section and a certified copy of the court order reversing the conviction, judgment or order, the department [of State Police] shall destroy any sample received from the person, any physical evidence obtained from that sample and any criminal identification records pertaining to the person, unless the department determines that the person has otherwise become obligated to submit a blood or buccal sample as a result of a separate conviction, juvenile adjudication or finding of guilty except for insanity for an offense listed in ORS 137.076 (1). When the department destroys a sample, physical evidence or criminal identification record under this paragraph, the department shall notify any public agency or person to whom the sample, physical evidence or criminal identification information was transferred or disclosed under subsection (4) of this section of the reversal of the conviction, judgment or order.

(c) The department is not required to destroy an item of physical evidence obtained from a blood or buccal sample if evidence relating to another person subject to the provisions of ORS 137.076, 161.325, 181.085, 419A.260 and 419C.473 (1) would thereby be destroyed. Notwithstanding this subsection, no sample, physical evidence or criminal identification record is affected by an order to set aside a conviction under ORS 137.225.

(9) As used in this section, “convicted” includes a juvenile court finding of jurisdiction based on ORS 419C.005.

SECTION 4. ORS 419C.473 is amended to read:

419C.473. (1) Whenever a youth is found to be within the jurisdiction of the court under ORS 419C.005 for having committed an act which, if done by an adult would constitute a felony [offense] listed in [ORS 137.076 (1)] subsection (2) of this section, the court shall order the youth to submit to the obtaining of a blood or buccal sample in the manner provided by ORS 137.076. The court shall further order that as soon as practicable after the entry of the dispositional order, the law enforcement agency attending upon the court shall cause a blood or buccal sample to be obtained and transmitted in accordance with ORS 137.076. The court may also order the youth to reimburse the appropriate agency for the cost of obtaining and transmitting the blood or buccal sample.

(2) The felonies to which subsection (1) of this section applies are:

(a) Rape, sodomy, unlawful sexual penetration, sexual abuse in the first or second degree, public indecency, incest or using a child in a display of sexually explicit conduct, as those offenses are defined in ORS 163.355 to 163.427, 163.465 (1)(c), 163.525 and 163.670;

(b) Burglary in the second degree, as defined in ORS 164.215, when committed with intent to commit any offense listed in paragraph (a) of this subsection;

(c) Promoting or compelling prostitution, as defined in ORS 167.012 and 167.017;

(d) Burglary in the first degree, as defined in ORS 164.225;

(e) Assault in the first degree, as defined in ORS 163.185;

(f) Conspiracy or attempt to commit any Class A or Class B felony listed in paragraphs (a) to (e) of this subsection; or

(g) Murder or aggravated murder.

[(2)] (3) No order for the obtaining and transmitting of a blood or buccal sample is required to be entered if:

(a) The Department of State Police notifies the court or the law enforcement agency attending upon the court that it has previously received an adequate blood or buccal sample taken from the youth in accordance with this section, ORS 137.076 or 161.325 (4); or

(b) The court determines that obtaining a sample would create a substantial and unreasonable risk to the health of the youth.

[(3)] (4) Notwithstanding any other provision of law, blood and buccal samples and other physical evidence and criminal identification information obtained under authority of this section or as a result of analysis conducted pursuant to ORS 181.085 may be maintained, stored, destroyed and released to authorized persons or agencies under the conditions established in ORS 181.085 and rules adopted by the Department of State Police under the authority of that section.

SECTION 5. (1) In addition to and not in lieu of any other appropriation, there is appropriated to the Department of State Police, for the biennium beginning July 1, 2001, out of the General Fund, the amount of $200,000, which may be expended for carrying out the duties imposed by the amendments to ORS 181.085 by section 3 of this 2001 Act.

(2) In addition to and not in lieu of any other appropriation, there is appropriated to the Emergency Board, for the biennium beginning July 1, 2001, out of the General Fund, the amount of $200,000, for allocation only to the Department of State Police after the department has reported on the progress the department is making in the collection and analysis of DNA (deoxyribonucleic acid) samples and has provided options for further implementation of DNA collection and analysis. Any moneys appropriated under this subsection that remain unobligated and unallocated on November 1, 2002, become available for any other purpose for which the Emergency Board lawfully may allocate funds.

Approved by the Governor July 27, 2001

Filed in the office of Secretary of State July 27, 2001

Effective date January 1, 2002

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