HF 2450 (LSB 5230HV (4) 87)

HOUSE FILE 2450

BY  COMMITTEE ON JUDICIARY

(SUCCESSOR TO HSB 581)

(As Amended and Passed by the House 2018-03-07)

A BILL FOR

An Act relating to DNA profiling of certain criminal offenders.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 81.1, Code 2018, is amended to read as follows:
   81.1  Definitions.
   As used in this chapter, unless the context otherwise requires:
   1.  “Aggravated misdemeanor” means an offense classified as an aggravated misdemeanor committed by a person eighteen years of age or older on or after July 1, 2014, other than any of the following offenses:
   a.  A violation of chapter 321.
   b.  A second offense violation of section 321J.2, unless the person has more than one previous revocation as determined pursuant to section 321J.2, subsection 8, within the twelve-year period immediately preceding the commission of the offense in question.
   c.  A violation of chapter 716B.
   d.  A violation of chapter 717A.
   e.  A violation of section 725.7.
   2.  “Combined DNA index system” means a national, searchable DNA database created and maintained by the federal bureau of investigation where DNA profiles are stored and searched at a local, state, or national level.
   2.  3.  “DNA” means deoxyribonucleic acid.
   3.  4.  “DNA data bank” means the repository for DNA samples obtained pursuant to section 81.4.
   4.  5.  “DNA database” means the collection of DNA profiles and DNA records.
   5.  6.  “DNA profile” means the objective form of the results of DNA analysis performed on a DNA sample. The results of all DNA identification analysis on an individual’s DNA sample are also collectively referred to as the DNA profile of an individual.  “DNA profile” also means the objective form of the results of DNA analysis performed on a forensic sample, to the extent that sufficient biological material is present to develop a valid DNA profile.
   6.  7.  “DNA profiling” means the procedure established by the division of criminal investigation, department of public safety, for determining a person’s genetic identity.
   7.  8.  “DNA record” means the DNA sample and DNA profile, and other records in the DNA database and DNA data bank used to identify a person.
   8.  9.  “DNA sample” means a biological sample provided by any person required to submit a DNA sample or a DNA sample submitted for any other purpose under section 81.4.
   10.  “DNA testing” means a test to analyze physical and biological evidence from a DNA sample including analysis that might not result in the establishment of a complete DNA profile.
   11.  “Forensic sample” means an evidentiary item that may contain DNA relevant to a crime.
   12.  “Keyboard search” means a manual keyboard search conducted in accordance with the current version of the national DNA index system operational procedures manual.
   9.  13.  “Person required to submit a DNA sample” means a person convicted, adjudicated delinquent, receiving a deferred judgment, or found not guilty by reason of insanity of an offense requiring DNA profiling pursuant to section 81.2. “Person required to submit a DNA sample” also means a person determined to be a sexually violent predator pursuant to section 229A.7.
    Sec. 2.  Section 81.10, Code 2018, is amended to read as follows:
   81.10  DNA profiling after conviction.
   1.  A defendant who has been convicted of a felony or aggravated misdemeanor and who has not been required to submit a DNA sample for DNA profiling may make a motion to the court for an order to require that DNA analysis profiling be performed on evidence a forensic sample collected in the case for which the person stands convicted.
   2.  The motion shall state the following:
   a.  The specific crimes for which the defendant stands convicted in this case.
   b.  The facts of the underlying case, as proven at trial or admitted to during a guilty plea proceeding.
   c.  Whether any of the charges include sexual abuse or involve sexual assault, and if so, whether a sexual assault examination was conducted and evidence forensic samples were preserved, if known.
   d.  Whether identity was at issue or contested by the defendant.
   e.  Whether the defendant offered an alibi, and if so, testimony corroborating the alibi and, from whom.
   f.  Whether eyewitness testimony was offered, and if so from whom.
   g.  Whether any issues of police or prosecutor misconduct have been raised in the past or are being raised by the motion.
   h.  The type of inculpatory evidence admitted into evidence at trial or admitted to during a guilty plea proceeding.
   i.  Whether blood testing or other biological evidence testing was conducted previously in connection with the case and, if so, by whom and the result, if known.
   j.  What biological evidence exists and, if known, the agency or laboratory storing the evidence forensic sample that the defendant seeks to have tested.
   k.  Why the requested analysis of DNA evidence a forensic sample is material to the issue in the case and not merely cumulative or impeaching.
   l.  Why the DNA evidence results would have changed the outcome of the trial or invalidated a guilty plea if the requested DNA profiling had been conducted prior to the conviction.
   3.  A motion filed under this section shall be filed in the county where the defendant was convicted, and notice of the motion shall be served by certified mail upon the county attorney and, if known, upon the state, local agency, or laboratory holding evidence described in subsection 2, paragraph “k”. The county attorney shall have sixty days to file an answer to the motion.  The motion shall be heard in, and before any judge of the court in which the defendant’s conviction or sentence took place. A record of the proceedings shall be made and preserved. All rules and statutes applicable in civil proceedings including pretrial and discovery procedures shall be available to the parties. The court may receive proof of affidavits, depositions, oral testimony, or other evidence, and may order the defendant brought before it for the hearing on the motion.
   4.  Any Subject to section 81.8, any DNA profiling of the defendant, an unknown person, or other biological evidence testing conducted by the state or by the defendant shall be disclosed and the results of such DNA profiling or other testing described in the motion or answer.
   5.  If the evidence forensic sample requested to be tested was previously subjected to DNA or other biological analysis by either party, the court may order the disclosure of the results of such testing, including laboratory reports, notes, and underlying data, to the court and the parties.
   6.  The court may order a hearing on the motion to determine if evidence the forensic sample should be subjected to DNA analysis profiling.
   7.  The court shall grant the motion if all of the following apply:
   a.  The evidence forensic sample subject to DNA testing profiling is available and in a condition that will permit analysis. any of the following apply:
   (1)  DNA profiling has not been performed on the forensic sample.
   (2)  DNA profiling has been previously performed on the forensic sample and the defendant is requesting DNA profiling using a new method or technology approved by the accrediting organization and authorized by the federal bureau of investigation for DNA profiling that is substantially more probative than the DNA profiling previously performed.
   b.  A sufficient chain of custody has been established for the evidence forensic sample.
   c.  The identity of the person who committed the crime for which the defendant was convicted was a significant issue in the crime for which the defendant was convicted.
   d.  The evidence forensic sample subject to DNA analysis profiling is material to, and not merely cumulative or impeaching of, evidence included in the trial record or admitted to at a guilty plea proceeding.
   e.  DNA analysis of the evidence The DNA profiling results would raise a reasonable probability that the defendant would not have been convicted if DNA profiling had been available at the time of the conviction and had been conducted prior to the conviction such results had been introduced at trial.
   8.  a.  Upon the court granting a motion filed pursuant to this section, DNA analysis profiling of evidence a forensic sample shall be conducted within the guidelines generally accepted by the scientific community. The defendant shall provide DNA samples for testing if requested by the state.
   b.  In response to a motion filed pursuant to this section, and after proper notice to the parties, including the department of public safety or other entity authorized to perform the search, the court may enter an order that authorizes the department of public safety or other entity to access the DNA database and do any of the following:
   (1)  Compare a DNA profile obtained from a DNA sample or forensic sample collected in connection with an investigation or prosecution of the defendant against the DNA database through the use of a keyboard search.
   (2)  Utilize a search method similar to a keyboard search that does not involve uploading the DNA profile to the DNA database if the court determines all of the following apply:
   (a)  The DNA profile complies with federal bureau of investigation requirements or state requirements, whichever are applicable, as such requirements are applied to law enforcement agencies seeking such a comparison, and the database meets national DNA index system or state DNA index system criteria, whichever is applicable. 
   (b)  If a comparison of the DNA profile had been conducted and if the results had been admitted at trial resulting in a verdict of guilty, a reasonable probability exists that the verdict would have been more favorable to the defendant, or in a case involving a plea of guilty, if the results had been available to the defendant prior to the guilty plea, a reasonable probability exists that a conviction would not have resulted. 
   9.  Results of DNA analysis profiling conducted pursuant to this section shall be reported to the parties and to the court and may be provided to the board of parole, department of corrections, and criminal and juvenile justice agencies, as defined in section 692.1, for use in the course of investigations and prosecutions, and for consideration in connection with requests for parole, pardon, reprieve, and commutation. DNA samples obtained pursuant to this section may be included in the DNA data bank, and DNA profiles and DNA records developed pursuant to this section may be included in the DNA database.
   10.  A criminal or juvenile justice agency, as defined in section 692.1, shall maintain DNA samples and evidence forensic samples that could be tested for DNA for a period of three years beyond the limitations for the commencement of criminal actions as set forth in chapter 802. This section does not create a cause of action for damages or a presumption of spoliation in the event evidence a forensic sample is no longer available for testing.
   11.  If the court determines a defendant who files a motion under this section is indigent, the defendant shall be entitled to appointment of counsel as provided in chapter 815.
   12.  If the court determines after DNA analysis profiling ordered pursuant to this section that the results indicate conclusively that the DNA profile of the defendant matches the profile from the analyzed evidence used against the defendant, the court may order the defendant to pay the costs of these proceedings, including costs of all testing, court costs, and costs of court-appointed counsel, if any.
   13.  If the court determines after DNA profiling ordered pursuant to this section that the results indicate a reasonable probability that the defendant would not have been convicted if such DNA profiling results had been introduced at trial, the court shall enter an appropriate order with respect to the defendant’s conviction or sentence in the former criminal proceedings, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented. This order shall be considered a final judgment.
    Sec. 3.  NEW SECTION.  81.11  Compliance with applicable laws.
   A court shall not enter an order under this chapter that would result in a violation of state or federal law or loss of access to a federal system or database.