Chapter 97 Oregon Laws 1999

Session Law

AN ACT

HB 2420

Relating to genetic profile testing; creating new provisions; and amending ORS 137.076, 161.325, 181.085, 419A.260, 419C.446 and 419C.473.

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) 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 [and 164.225], when committed with intent to commit any offense listed in paragraph (a) of this subsection;

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

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

[(d)] (f) Conspiracy or attempt to commit any felony listed in paragraphs (a) to [(c)] (e) of this subsection; or

[(e)] (g) 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 [drawn] 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 [drawing] 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 [drawing] 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 [drawn] obtained and transmitted to the Department of State Police. The agency shall cause the sample to be [drawn] obtained as soon as practicable after conviction. [, but in the case of any person ordered to serve a term of incarceration as a part of the sentence, prior to the person's release from incarceration.] 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 [it] an agency is notified by the Department of State Police that a sample is not adequate for analysis, the agency shall [draw] obtain and transmit [an additional] 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 [draw] obtain a blood or buccal sample shall not be held civilly liable for [drawing] obtaining a sample in [a medically acceptable manner in] accordance with this subsection and subsection (2) of this section, ORS 161.325 and 419C.473. The sample shall also be [drawn] 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 [drawn] 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 [drawn] obtained from the convicted person in accordance with this section or ORS 161.325 or 419C.473; or

(b) The court determines that [drawing] 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 [drawing] 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 [drawn] obtained and transmitted in accordance with subsections (1) to (4) of this section.

SECTION 2. ORS 161.325 is amended to read:

161.325. (1) After entry of judgment of guilty except for insanity, the court shall, on the basis of the evidence given at the trial or at a separate hearing, if requested by either party, make an order as provided in ORS 161.327 or 161.329, whichever is appropriate.

(2) If the court makes an order as provided in ORS 161.327, it shall also:

(a) Determine on the record the offense of which the person otherwise would have been convicted; and

(b) Make specific findings on whether there is a victim of the crime for which the defendant has been found guilty except for insanity and, if so, whether the victim wishes to be notified, under ORS 161.326 (2), of any Psychiatric Security Review Board hearings concerning the defendant and of any conditional release, discharge or escape of the defendant.

(3) The court shall include any such findings in its order.

(4) Except under circumstances described in ORS 137.076 (4), whenever a defendant charged with any offense listed in ORS 137.076 (1) has been found guilty of that offense except for insanity, the court shall, in any order entered under ORS 161.327 or 161.329, direct the defendant to submit to the [drawing] obtaining of a blood or buccal sample in the manner provided in ORS 137.076.

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 [autoradiographs 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 [analysis] 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 [drawing] obtaining, transmitting and analyzing blood and buccal samples and for storing and destroying blood and buccal samples[, autoradiographs] and other physical evidence and criminal identification information obtained from such analysis. Procedures for blood [analysis] 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 not transfer or disclose any sample, [autoradiograph,] 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 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.

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

(4) Notwithstanding subsections (2) and (3) 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[, autoradiograph] or other physical evidence. The department shall adopt procedures governing the inspection of records[,] and samples [and autoradiographs] and challenges to the accuracy of records. The procedures shall accommodate the need to preserve the materials from contamination and destruction.

(5) 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. 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). The department is not required to destroy an [autoradiograph or other] 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, [autoradiograph,] physical evidence or criminal identification record is affected by an order to set aside a conviction under ORS 137.225.

SECTION 4. ORS 419A.260 is amended to read:

419A.260. (1) As used in this section and ORS 419A.262:

(a) "Contact" means any instance in which a person's act or behavior, or alleged act or behavior, which could result in a juvenile court's assumption of jurisdiction under ORS 419B.100 (1)(a) to (c) and (f) or 419C.005 comes to the attention of an agency specified in paragraph (d) of this subsection.

(b) "Expunction" means:

(A) The removal and destruction of a judgment or order related to a contact;

(B) The removal and destruction of all records and all references; and

(C) Where a record is kept by the State Office for Services to Children and Families or the Oregon Youth Authority, either the sealing of such record by the office or the Oregon Youth Authority or, in a multiperson file, the affixing to the front of the file, by the office or the youth authority, a stamp or statement identifying the name of the individual, the date of expunction and instruction that no further reference shall be made to the material that is subject to the expunction order except upon an order of a court of competent jurisdiction.

(d) "Record" includes a fingerprint or photograph file, report, exhibit or other material which contains information relating to a person's contact with any law enforcement agency or juvenile court or juvenile department and is kept manually, through the use of electronic data processing equipment, or by any other means by a law enforcement or public investigative agency, a juvenile court or juvenile department or an agency of the State of Oregon. "Record" does not include:

(A) A transcript of a student's academic record at MacLaren School or Hillcrest School of Oregon;

(B) Material on file with a public agency which is necessary for obtaining federal financial participation regarding financial assistance or services on behalf of a person who has had a contact;

(C) Records kept or disseminated by the Department of Transportation, State Marine Board and State Fish and Wildlife Commission pursuant to juvenile or adult order or recommendation;

(D) Police and court records related to an order of waiver where the matter is still pending in the adult court or on appeal therefrom, or to any disposition as an adult pursuant to such order;

(E) Records related to a support obligation;

(F) Medical records;

(G) Records of a proposed or adjudicated termination of parental rights and adoptions;

(H) Any law enforcement record of a person who currently does not qualify for expunction or of current investigations or cases waived to the adult court;

(I) Records and case reports of the Oregon Supreme Court and the Oregon Court of Appeals;

(J) Any records in cases under ORS 419C.005 in which a juvenile court found a person to be within the jurisdiction of the court based upon the person's commission of an act which if done by an adult would constitute one of the following offenses:

(i) Aggravated murder under ORS 163.095;

(ii) Murder under ORS 163.115;

(iii) Attempt, solicitation or conspiracy to commit murder or aggravated murder;

(iv) Manslaughter in the first degree under ORS 163.118;

(v) Manslaughter in the second degree under ORS 163.125;

(vi) Criminally negligent homicide under ORS 163.145;

(vii) Assault in the first degree under ORS 163.185;

(viii) Criminal mistreatment in the first degree under ORS 163.205;

(ix) Kidnapping in the first degree under ORS 163.235;

(x) Rape in the third degree under ORS 163.355;

(xi) Rape in the second degree under ORS 163.365;

(xii) Rape in the first degree under ORS 163.375;

(xiii) Sodomy in the third degree under ORS 163.385;

(xiv) Sodomy in the second degree under ORS 163.395;

(xv) Sodomy in the first degree under ORS 163.405;

(xvi) Unlawful sexual penetration in the second degree under ORS 163.408;

(xvii) Unlawful sexual penetration in the first degree under ORS 163.411;

(xviii) Sexual abuse in the third degree under ORS 163.415;

(xix) Sexual abuse in the second degree under ORS 163.425;

(xx) Sexual abuse in the first degree under ORS 163.427;

(xxi) Promoting prostitution under ORS 167.012;

(xxii) Compelling prostitution under ORS 167.017; or

(xxiii) An attempt to commit a crime listed in this subparagraph other than manslaughter in the second degree and criminally negligent homicide;

(K) Blood samples, buccal samples [autoradiographs] and other physical evidence and identification information obtained, stored or maintained by the Department of State Police under authority of ORS 137.076, 181.085 or 419C.473; or

(L) Records maintained in the Law Enforcement Data System under ORS 181.595 and 181.596.

(e) "Termination" means:

(A) For a person who is the subject of a record kept by a juvenile court or juvenile department, the final disposition of a case by informal means, by a decision not to place the person on probation or make the person a ward of the court after the person has been found to be within the court's jurisdiction, or by a discontinuance of probation or of the court's wardship.

(B) For a person who is the subject of a record kept by a law enforcement or public investigative agency, a juvenile court or juvenile department or an agency of the State of Oregon, the final disposition of the person's most recent contact with a law enforcement agency.

(2) The juvenile court or juvenile department shall make reasonable effort to provide written notice to a child who is within the court's jurisdiction under ORS 419B.100 (1)(a) to (c) and (f) or to a youth who is within the court's jurisdiction under ORS 419C.005, and to the child's or youth's parent, of the procedures for expunction of a record, the right to counsel under this chapter, and the legal effect of an expunction order, at the following times:

(a) At any dispositional hearing or at the time of entering into a formal accountability agreement;

(b) At the time of termination;

(c) Upon notice to the subject of an expunction pending pursuant to application of a juvenile department or motion on a juvenile court; and

(d) At the time of notice of execution of an expunction order.

SECTION 5. ORS 419C.446 is amended to read:

419C.446. (1) When a youth has been found to be within its jurisdiction, and when the court determines it would be in the best interest and welfare of the youth, the court may place the youth on probation. The court may direct that the youth remain in the legal custody of the youth's parents or other person with whom the youth is living, or the court may direct that the youth be placed in the legal custody of some relative or some person maintaining a foster home approved by the court, or in a child care center or a youth care center authorized to accept the youth.

(2) The court may specify particular requirements to be observed during the probation consistent with recognized juvenile court practice, including but not limited to restrictions on visitation by the youth's parents, restrictions on the youth's associates, occupation and activities, restrictions on and requirements to be observed by the person having the youth's legal custody, requirements that the youth pay any assessment under ORS 137.290, requirements for visitation by and consultation with a juvenile counselor or other suitable counselor, requirements to make restitution under ORS 419C.450, requirements of a period of detention under ORS 419C.453, requirements to pay a fine under ORS 419C.459, requirements to pay a supervision fee under ORS 419C.449, requirements to perform community service under ORS 419C.462, or service for the victim under ORS 419C.465, or requirements to submit to blood or buccal testing under ORS 419C.473.

SECTION 6. 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), the court shall order the youth to submit to the [drawing] 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 [drawn] 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 [drawing] obtaining and transmitting the blood or buccal sample.

(2) No order for the [drawing] 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 [drawing] obtaining a sample would create a substantial and unreasonable risk to the health of the youth.

(3) Notwithstanding any other provision of law, blood and buccal samples[, autoradiographs] 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 7. As soon as is practicable after the effective date of this 1999 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.

Approved by the Governor April 23, 1999

Filed in the office of Secretary of State April 23, 1999

Effective date October 23, 1999

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