75th OREGON LEGISLATIVE ASSEMBLY--2009 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 1948
Senate Bill 310
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary for American Civil Liberties Union)
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 as
introduced.
Requires custodian to preserve biological evidence related to
criminal activity until certain conditions are met. Provides that
court may impose sanctions or order other remedies for
unauthorized destruction.
Creates Task Force on DNA Retention to devise standards for
collection of biological evidence.
Sunsets task force on January 2, 2012.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to deoxyribonucleic acid; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) Except as provided in subsection (4) or (5)
of this section, a custodian shall preserve biological evidence:
(a) That is collected as part of a criminal investigation; or
(b)(A) That reasonably may be used to incriminate or exculpate
any person for a criminal offense; and
(B) Is in the possession of the custodian before any person is
convicted of the criminal offense.
(2) A custodian shall preserve biological evidence described in
subsection (1) of this section in an amount and manner that is
sufficient to develop a DNA profile. The evidence must be
preserved until the later of:
(a) Every person convicted of the crime for which the evidence
was collected has served the person's sentence;
(b) A person convicted of a sex crime as defined in ORS 181.594
is no longer required to report as a sex offender;
(c) A person convicted of aggravated murder or murder dies; or
(d) The law enforcement agency investigating the criminal case
closes the case for a reason other than the conviction of the
defendant.
(3) Upon written request by the defendant, the custodian shall
prepare an inventory of biological evidence that has been
preserved under this section.
(4) A custodian may destroy biological evidence prior to the
period of time described in subsection (2) of this section if all
of the following conditions are met:
(a) No other provision of state or federal law requires the
custodian to preserve the evidence.
(b) The custodian sends notice of the intent to destroy the
evidence via certified mail to:
(A) Each person described in subsection (2)(a) to (c) of this
section;
(B) The attorney of record for the persons described in
subsection (2)(a) to (c) of this section;
(C) The district attorney of the county in which the person
described in subsection (2)(a) to (c) of this section was
convicted;
(D) The public defense services executive director; and
(E) The Attorney General.
(c) Within 180 days following receipt of the notice, a person
described in paragraph (b) of this subsection does not:
(A) File a motion described in ORS 138.690; or
(B) Provide the entity sending the notice with a written
request to retain the evidence.
(5) The custodian is not required to preserve physical evidence
solely because the physical evidence contains biological evidence
if the physical evidence is of such a size, bulk or physical
character as to render retention impracticable. When the
retention of physical evidence is impracticable, the custodian
shall remove and preserve portions of the physical evidence
likely to contain biological evidence in a quantity sufficient to
permit future DNA testing before returning or disposing of the
physical evidence.
(6) If a custodian is required to preserve evidence under this
section and the custodian is unable to produce the evidence in a
judicial proceeding, the individual to whom the custodian has
delegated the duty to preserve the evidence shall prepare, sign
and file with the court a sworn affidavit that indicates that the
custodian is unable to produce the evidence and describes the
efforts taken to locate the evidence.
(7) If a court finds that biological evidence was destroyed in
violation of this section, the court may impose appropriate
sanctions and order appropriate remedies.
(8) As used in this section:
(a) 'Biological evidence' means any item that contains blood,
semen, hair, saliva, skin tissue, fingernail scrapings, bone,
bodily fluids or other identifiable biological material, whether
the item is stored or cataloged separately or is present upon
other evidence. 'Biological evidence' includes the contents of a
sexual assault forensic evidence kit.
(b) 'Convicted' includes a finding of guilty except for
insanity or a finding that a person is within the jurisdiction of
the juvenile court under ORS 419C.005.
(c) 'Custodian' means any person or public body as defined in
ORS 174.109 that is charged with the collection, storage or
retrieval of biological evidence in connection with a criminal
investigation or prosecution. 'Custodian' includes law
enforcement agencies as defined in ORS 131.550, courts,
intergovernmental entities, hospitals and the Oregon Health and
Science University.
(d) 'DNA' means deoxyribonucleic acid.
(e) 'DNA profile' means the unique identifier of an individual
that is derived from DNA.
(f) 'Sentence' means a term of incarceration in a correctional
or juvenile detention facility, a period of probation, parole or
post-prison supervision and the period of time a person is under
the jurisdiction of the Psychiatric Security Review Board. + }
SECTION 2. { + (1) There is created the Task Force on DNA
Retention consisting of 16 members appointed as follows:
(a) The President of the Senate shall appoint two members from
among the Senate. One member must be a member of the majority
party and one must be a member of a minority party.
(b) The Speaker of the House of Representatives shall appoint
two members from among members of the House of Representatives.
One member must be a member of the majority party and one must be
a member of a minority party.
(c) The Governor shall appoint 12 members as follows:
(A) One member who is employed by the office of public defense
services established under ORS 151.216;
(B) One member who is employed by the Department of Justice;
(C) One member who is employed by the Judicial Department;
(D) One member who is a representative of the Oregon District
Attorneys Association;
(E) One member who is a representative of the Oregon Criminal
Defense Lawyers Association;
(F) One member who is a representative of the Oregon State Bar;
(G) One member who is a representative of the Forensic Services
Division of the Oregon State Police;
(H) One member who is a representative of the Oregon
Association Chiefs of Police;
(I) One member who is a representative of the Oregon State
Sheriffs' Association;
(J) One member who is a representative of the Oregon
Association of Property and Evidence Officers;
(K) One member who is a representative of an organization that
advocates for victims of crime; and
(L) One member who is a representative of the American Civil
Liberties Union.
(2) The task force shall:
(a) Devise standards for the proper collection, retention and
cataloging of biological evidence applicable to criminal
investigations and prosecutions; and
(b) Recommend practices, protocols, models and resources for
the cataloging and accessibility of preserved biological evidence
in the possession of a custodian as defined in section 1 of this
2009 Act.
(3) A majority of the members of the task force constitutes a
quorum for the transaction of business.
(4) Official action by the task force requires the approval of
a majority of the members of the task force.
(5) The task force shall elect one of its members to serve as
chairperson.
(6) If there is a vacancy for any cause, the appointing
authority shall make an appointment to become immediately
effective.
(7) The task force shall meet at times and places specified by
the call of the chairperson or of a majority of the members of
the task force.
(8) The task force may adopt rules necessary for the operation
of the task force.
(9) The task force shall report its findings, and may include
recommendations for legislation, to an interim committee related
to the judiciary and in the manner provided by ORS 192.245 no
later than October 1, 2010. The report shall include a
recommendation as to whether the task force should be allowed to
sunset under section 4 of this 2009 Act.
(10) The Department of Justice shall provide staff support to
the task force.
(11) Members of the task force who are not members of the
Legislative Assembly are not entitled to compensation or
reimbursement and serve as volunteers on the task force.
(12) All agencies of state government, as defined in ORS
174.111, are directed to assist the task force in the performance
of its duties and, to the extent permitted by laws relating to
confidentiality, to furnish such information and advice as the
members of the task force consider necessary to perform their
duties. + }
SECTION 3. { + Section 1 of this 2009 Act applies to
biological evidence that first comes into the possession of a
custodian, as defined in section 1 of this 2009 Act, on or after
the effective date of this 2009 Act. + }
SECTION 4. { + Section 2 of this 2009 Act is repealed on
January 2, 2012. + }
SECTION 5. { + This 2009 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2009 Act takes effect on its
passage. + }
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