71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
House Bill 2664
Sponsored by Representatives WINTERS, MINNIS, SIMMONS;
Representatives BACKLUND, BROWN, BUTLER, CARLSON, CLOSE,
DEVLIN, 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
CHAPTER ................
AN ACT
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
Enrolled House Bill 2664 (HB 2664-B) Page 1
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.
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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;
(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) 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:
Enrolled House Bill 2664 (HB 2664-B) Page 3
(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
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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
Enrolled House Bill 2664 (HB 2664-B) Page 5
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. + }
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Enrolled House Bill 2664 (HB 2664-B) Page 6
Passed by House July 1, 2001
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate July 3, 2001
...........................................................
President of Senate
Enrolled House Bill 2664 (HB 2664-B) Page 7
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled House Bill 2664 (HB 2664-B) Page 8