THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY BOSCOLA, RAFFERTY, BROWNE, WAUGH, FONTANA, WASHINGTON, WOZNIAK AND ERICKSON, MARCH 7, 2011

REFERRED TO JUDICIARY, MARCH 7, 2011  

AN ACT

Amending Title 44 (Law and Justice) of the Pennsylvania

Consolidated Statutes, further providing for policy, for

definitions 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 of Title 44 of the Pennsylvania

Consolidated Statutes is amended to read:

§ 2302.  Policy.

The General Assembly finds and declares that:

(1)  DNA data banks are an important tool in criminal

investigations, in the exclusion of individuals who are the

subject of criminal investigations or prosecutions and in

deterring and detecting recidivist acts.

(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.

(3)  Moreover, it is the policy of the Commonwealth to

assist Federal, State and local criminal justice and law

enforcement agencies in the identification and detection of

individuals in criminal investigations.

(4)  It is therefore in the best interest of the

Commonwealth to establish a DNA data base and a DNA data bank

containing DNA samples submitted by individuals arrested,

charged, convicted of, adjudicated delinquent for or accepted

into ARD for felony [sex] offenses and other specified

offenses.

Section 2.  The definitions of "felony sex offense" and

"other specified offense" in section 2303 of Title 44 are

amended to read:

§ 2303.  Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

* * *

["Felony sex offense."  A felony offense or an attempt,

conspiracy or solicitation to commit a felony offense under any

of the following:

18 Pa.C.S. Ch. 31 (relating to sexual offenses).

18 Pa.C.S. § 4302 (relating to incest).

18 Pa.C.S. § 5902(c)(1)(iii) and (iv) (relating to

prostitution and related offenses).

18 Pa.C.S. § 5903(a) (relating to obscene and other

sexual materials and performances) where the offense

constitutes a felony.

18 Pa.C.S. § 6312 (relating to sexual abuse of children).

18 Pa.C.S. § 6318 (relating to unlawful contact with

minor) where the most serious underlying offense for which

the defendant contacted the minor is graded as a felony.

18 Pa.C.S. § 6320 (relating to sexual exploitation of

children).]

* * *

"Other specified offense."  [A felony offense or an] An 

offense under 18 Pa.C.S. § 2910 (relating to luring a child into

a motor vehicle) or 3126 (relating to indecent assault) or an

attempt to commit such an offense.

* * *

Section 3.  Section 2316 of Title 44 is amended 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.

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

(1)  A person who has been convicted or adjudicated

delinquent for a felony [sex] offense or other specified

offense and who serves a term of confinement in connection

therewith after June 18, 2002, shall not be released in any

manner unless and until a DNA sample has been withdrawn.

(2)  This chapter shall apply to incarcerated persons

convicted or adjudicated delinquent for a felony [sex]

offense prior to June 19, 2002.

(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 offense or other

specified offense.

(c)  Certain ARD cases.--Acceptance into ARD as a result of a

criminal charge for a felony [sex] offense or other specified

offense filed after June 18, 2002, may be conditioned upon the

giving of a DNA sample.

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

arrested as an adult for a felony offense or other specified

offense shall have a DNA sample drawn as follows:

(1)  An adult person arrested for a felony 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.

(d)  Supervision of DNA samples.--All DNA samples taken

pursuant to this section shall be taken in accordance with

regulations promulgated by the State Police in consultation with

the Department of Corrections.

(d.1)  Mandatory submission.--The requirements of this

chapter are mandatory and apply regardless of whether a court

advises a person that a DNA sample must be provided to the State

DNA Data Base and the State DNA Data Bank as a result of a

conviction or adjudication of delinquency. A person who has been

sentenced to death or life imprisonment without the possibility

of parole or to any term of incarceration is not exempt from the

requirements of this chapter. Any person subject to this chapter

who has not provided a DNA sample for any reason, including

because of an oversight or error, shall provide a DNA sample for

inclusion in the State DNA Data Base and the State DNA Data Bank

after being notified by authorized law enforcement or

corrections personnel. If a person provides a DNA sample which

is not adequate for any reason, the person shall provide another

DNA sample for inclusion in the State DNA Data Base and the

State DNA Data Bank after being notified by authorized law

enforcement or corrections personnel.

(e)  Definition.--As used in this section, the term

"released" means any release, parole, furlough, work release,

prerelease or release in any other manner from a prison, jail,

juvenile detention facility or any other place of confinement.

Section 4.  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 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 5.  Sections 2317(a)(1) and 2321(a) and (b) of Title

44 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 2326.1 (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.

* * *

§ 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 under subsection (a).

* * *

Section 6.  This act shall take effect in 60 days.