71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2343
A-Engrossed
House Bill 2664
Ordered by the House April 23
Including House Amendments dated April 23
Sponsored by Representatives WINTERS, MINNIS, SIMMONS;
Representatives BACKLUND, BROWN, BUTLER, CARLSON, CLOSE, DOYLE,
GARRARD, HILL, JENSON, KNOPP, KRIEGER, KROPF, KRUMMEL, KRUSE,
LEE, LOWE, MORGAN, NELSON, PATRIDGE, SHETTERLY, G SMITH, P
SMITH, T SMITH, STARR, C WALKER, WESTLUND, WITT, ZAUNER,
Senator MINNIS
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Expands list of crimes for which blood or buccal samples must
be obtained. { + Restricts authority of Department of State
Police to transfer samples, physical evidence or criminal
identification information. + }
A BILL FOR AN ACT
Relating to criminal procedure; creating new provisions; and
amending ORS 137.076 and 181.085.
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
{ + in this state + } of one of the following offenses:
(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
{ - , 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) 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 degree, as defined in ORS 164.415; + }
{ - (f) - } { + (i) + } Conspiracy or attempt to commit any
felony listed in paragraphs (a) to { - (e) - } { + (h) + } of
this subsection; or
{ - (g) - } { + (j) + } Murder { + , + } { - or - }
aggravated murder { + or an attempt to commit 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. { + As soon as is practicable after the effective
date of this 2001 Act, the Department of Corrections shall obtain
a blood or buccal sample from any person incarcerated in a
Department of Corrections institution, as defined in ORS 421.005:
(1) Who meets the criteria of ORS 137.076 (1); and
(2) For whom the department does not already have a blood or
buccal sample. + }
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 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;
(c) Maintain a criminal identification database containing
information derived from blood and buccal analyses;
(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) 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 + }.
{ + (3) The department may not transfer or disclose any
sample, physical evidence or criminal identification information
under subsection (2) 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) - } { + (4) + }Any public agency that receives a
sample, physical evidence or criminal identification information
under authority of subsection (2) of this section { - shall - }
{ + may + } not disclose it except as provided in subsection
(2) of this section.
{ - (4) - } { + (5) + } Notwithstanding subsections (2) and
{ - (3) - } { + (4) + } 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) - } { + (6)(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 (2) 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.
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