THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY BOSCOLA, BROWNE, WONDERLING, WOZNIAK, COSTA, STOUT, ORIE, WILLIAMS, RAFFERTY, STACK, LOGAN, FONTANA, O'PAKE, WAUGH AND EARLL, APRIL 6, 2009

REFERRED TO JUDICIARY, APRIL 6, 2009  

AN ACT

Amending Title 44 (Law and Justice) of the Pennsylvania

Consolidated Statutes, further providing for policy and for

DNA sample; providing for collection from persons accepted

from other jurisdictions; and further providing for

procedures for withdrawal, collection and transmission of DNA

samples and for expungement.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 2302(2) of Title 44 of the Pennsylvania

Consolidated Statutes is amended to read:

§ 2302.  Policy.

The General Assembly finds and declares that:

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(2)  Several states have enacted laws requiring persons

arrested, charged or convicted of certain crimes, especially

sex offenses, to provide genetic samples for DNA profiling.

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Section 2.  Section 2316 heading, (a) and (b)(3) are amended

and the section is amended by adding a subsection to read:

§ 2316.  DNA sample required upon arrest, conviction,

delinquency adjudication and certain ARD cases.

(a)  [General rule] Conviction or adjudication.--A person who

is convicted or adjudicated delinquent for a felony sex offense

or other specified offense or who is or remains incarcerated for

a felony sex offense or other specified offense on or after the

effective date of this chapter shall have a DNA sample drawn as

follows:

(1)  A person who is sentenced or receives a delinquency

disposition to a term of confinement for an offense covered

by this subsection shall have a DNA sample drawn upon intake

to a prison, jail or juvenile detention facility or any other

detention facility or institution. If the person is already

confined at the time of sentencing or adjudication, the

person shall have a DNA sample drawn immediately after the

sentencing or adjudication. If a DNA sample is not timely

drawn in accordance with this section, the DNA sample may be

drawn any time thereafter by the prison, jail, juvenile

detention facility, detention facility or institution.

(2)  A person who is convicted or adjudicated delinquent

for an offense covered by this subsection shall have a DNA

sample drawn as a condition for any sentence or adjudication

which disposition will not involve an intake into a prison,

jail, juvenile detention facility or any other detention

facility or institution.

(3)  Under no circumstances shall a person who is

convicted or adjudicated delinquent for an offense covered by

this subsection be released in any manner after such

disposition unless and until a DNA sample has been

[withdrawn] drawn.

(b)  Condition of release, probation or parole.--

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(3)  This chapter shall apply to incarcerated persons and

persons on probation or parole who were convicted or

adjudicated delinquent for other specified offenses prior to

the effective date of this paragraph[.] whether or not the

offense for which the person is currently imprisoned or under

probation or parole supervision is a felony sex offense or

other specified offense.

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(c.1)  Criminal charge or arrest.--Any person who is charged

or arrested as an adult for a felony sex offense or other

specified offense shall have a DNA sample drawn as follows:

(1)  Any adult person arrested for a felony sex offense

or other specified felony shall provide a DNA sample and

fingerprints as required under this chapter immediately

following arrest, during booking or intake or as soon as

administratively practical after arrest but no later than

prior to release on bail or pending trial or any other

physical release from confinement or custody.

(2)  If for any reason a person subject to this chapter

did not have DNA samples and fingerprints taken under

paragraph (1) or otherwise bypasses the State or county

prison system, the court shall order the person to report

within five calendar days to prison, jail unit, juvenile

facility or other facility to be specified by the court to

provide DNA samples and fingerprints in accordance with this

chapter.

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Section 3.  Title 44 is amended by adding a section to read:

§ 2316.1.  Collection from persons accepted from other

jurisdictions.

(a)  Conditional acceptance.--When a person is accepted into

this Commonwealth for supervision from another jurisdiction

through the Interstate Compact for Supervision of Adult

Offenders or under any other reciprocal agreement with any

Federal, state or county agency, or any other provision of law,

whether or not the person is confined or released, the

acceptance shall be conditioned on the offender providing DNA

samples under this chapter if the offender has a record of any

past or present conviction or adjudication that is substantially

similar to a felony sex offense or other specified offense from

any Federal, state or military court. Additional DNA samples

shall not be required if a DNA sample is currently on file with

CODIS or the DNA record.

(b)  Time period.--

(1)  If the person accepted under subsection (a) is not

confined, the DNA sample and fingerprints required by this

chapter shall be provided within five calendar days after the

person reports to the supervising agent or within five

calendar days of notice to the person, whichever occurs

first. The person shall appear and the DNA samples shall be

collected in accordance with the provisions of this chapter.

(2)  If the person accepted under subsection (a) is

confined, the person shall provide the DNA sample and

fingerprints required by this chapter as soon as practical

after receipt in a facility in this Commonwealth.

Section 4.  Sections 2317(a)(1) and 2321(a) and (b) are

amended to read:

§ 2317.  Procedures for withdrawal, collection and transmission

of DNA samples.

(a)  Drawing of DNA samples.--

(1)  Each DNA sample required to be drawn pursuant to

[section] sections 2316 (relating to DNA sample required upon

arrest, conviction, delinquency adjudication and certain ARD

cases) and 2316.1 (relating to collection from persons

accepted from other jurisdictions) from persons who are

incarcerated or confined shall be drawn at the place of

incarceration or confinement as provided for in section 2316.

DNA samples from persons who are not ordered or sentenced to

a term of confinement shall be drawn at a prison, jail unit,

juvenile facility or other facility to be specified by the

court. Only those individuals qualified to draw DNA samples

in a medically approved manner shall draw a DNA sample to be

submitted for DNA analysis. Such sample and the set of

fingerprints provided for in paragraph (2) shall be delivered

to the State Police within 48 hours of drawing the sample.

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§ 2321.  Expungement.

(a)  General rule.--

(1)  A person whose DNA sample, record or profile has

been included in the State DNA Data Bank or the State DNA

Data Base pursuant to the former DNA Act, former 42 Pa.C.S.

Ch. 47 (relating to DNA data and testing) or this chapter may

request expungement [on the grounds that the conviction or

delinquency adjudication on which the authority for including

that person's DNA sample, record or profile was based has

been reversed and the case dismissed or that the DNA sample,

record or profile was included in the State DNA Data Bank or

the State DNA Data Base by mistake.] if the person files the

request in writing with the State Police and any of the

following apply:

(i)  The State Police receive, for each conviction of

the person of an offense the basis of which that analysis

was or could have been included in the State DNA Data

Bank or the State DNA Data Base, a certified copy of a

final court order establishing that the conviction has

been overturned.

(ii)  The person has not been convicted of an offense

the basis of which that analysis was or could have been

included in the State DNA Data Bank or the State DNA Data

Base and the State Police receive, for each charge

against the person the basis of which the analysis was or

could have been included in the State DNA Data Bank or

the State DNA Data Base, a certified copy of a final

court order establishing that the charge has been

dismissed or has resulted in an acquittal or that no

charge was filed within the applicable time period.

(iii)  The State Police receive clear and convincing

proof that the DNA sample, record or profile was included

in the State DNA Data Bank or the State DNA Data Base by

mistake.

(2)  For purposes of this section, a court order is not

"final" if time remains for an appeal or application for

discretionary review with respect to the order.

(b)  Duty of State Police.--The State Police shall purge all

records and identifiable information in the State DNA Data Bank

or State DNA Data Base pertaining to the person and destroy each

sample, record and profile from the person upon[:

(1)  receipt of a written request for expungement

pursuant to this section and a certified copy of the final

court order reversing and dismissing the conviction; or

(2)  clear and convincing proof that the sample record or

profile was included by mistake.] receipt of the applicable

documents and other materials required in subsection (a).

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Section 5.  This act shall take effect in 60 days.