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                                                      PRINTER'S NO. 1728

THE GENERAL ASSEMBLY OF PENNSYLVANIA


SENATE BILL

No. 1265 Session of 2008


        INTRODUCED BY BOSCOLA, FONTANA, WASHINGTON, O'PAKE, RAFFERTY,
           STOUT, ORIE, ERICKSON, KITCHEN, C. WILLIAMS, KASUNIC, EARLL,
           ROBBINS, GREENLEAF, COSTA AND PILEGGI, FEBRUARY 4, 2008

        REFERRED TO JUDICIARY, FEBRUARY 4, 2008

                                     AN ACT

     1  Amending Title 44 (Law and Justice) of the Pennsylvania
     2     Consolidated Statutes, further providing for policy and for
     3     DNA sample; providing for collection from persons accepted
     4     from other jurisdictions; and further providing for
     5     procedures for withdrawal, collection and transmission of DNA
     6     samples and for expungement.

     7     The General Assembly of the Commonwealth of Pennsylvania
     8  hereby enacts as follows:
     9     Section 1.  Section 2302(2) of Title 44 of the Pennsylvania
    10  Consolidated Statutes is amended to read:
    11  § 2302.  Policy.
    12     The General Assembly finds and declares that:
    13         * * *
    14         (2)  Several states have enacted laws requiring persons
    15     arrested, charged or convicted of certain crimes, especially
    16     sex offenses, to provide genetic samples for DNA profiling.
    17         * * *
    18     Section 2.  Section 2316 heading, (a) and (b)(3) are amended
    19  and the section is amended by adding a subsection to read:


     1  § 2316.  DNA sample required upon arrest, conviction,
     2             delinquency adjudication and certain ARD cases.
     3     (a)  [General rule] Conviction or adjudication.--A person who
     4  is convicted or adjudicated delinquent for a felony sex offense
     5  or other specified offense or who is or remains incarcerated for
     6  a felony sex offense or other specified offense on or after the
     7  effective date of this chapter shall have a DNA sample drawn as
     8  follows:
     9         (1)  A person who is sentenced or receives a delinquency
    10     disposition to a term of confinement for an offense covered
    11     by this subsection shall have a DNA sample drawn upon intake
    12     to a prison, jail or juvenile detention facility or any other
    13     detention facility or institution. If the person is already
    14     confined at the time of sentencing or adjudication, the
    15     person shall have a DNA sample drawn immediately after the
    16     sentencing or adjudication. If a DNA sample is not timely
    17     drawn in accordance with this section, the DNA sample may be
    18     drawn any time thereafter by the prison, jail, juvenile
    19     detention facility, detention facility or institution.
    20         (2)  A person who is convicted or adjudicated delinquent
    21     for an offense covered by this subsection shall have a DNA
    22     sample drawn as a condition for any sentence or adjudication
    23     which disposition will not involve an intake into a prison,
    24     jail, juvenile detention facility or any other detention
    25     facility or institution.
    26         (3)  Under no circumstances shall a person who is
    27     convicted or adjudicated delinquent for an offense covered by
    28     this subsection be released in any manner after such
    29     disposition unless and until a DNA sample has been
    30     [withdrawn] drawn.
    20080S1265B1728                  - 2 -     

     1     (b)  Condition of release, probation or parole.--
     2         * * *
     3         (3)  This chapter shall apply to incarcerated persons and
     4     persons on probation or parole who were convicted or
     5     adjudicated delinquent for other specified offenses prior to
     6     the effective date of this paragraph[.] whether or not the
     7     offense for which the person is currently imprisoned or under
     8     probation or parole supervision is a felony sex offense or
     9     other specified offense.
    10     * * *
    11     (c.1)  Criminal charge or arrest.--Any person who is charged
    12  or arrested as an adult for a felony sex offense or other
    13  specified offense shall have a DNA sample drawn as follows:
    14         (1)  Any adult person arrested for a felony sex offense
    15     or other specified felony shall provide a DNA sample and
    16     fingerprints as required under this chapter immediately
    17     following arrest, during booking or intake or as soon as
    18     administratively practical after arrest but no later than
    19     prior to release on bail or pending trial or any other
    20     physical release from confinement or custody.
    21         (2)  If for any reason a person subject to this chapter
    22     did not have DNA samples and fingerprints taken under
    23     paragraph (1) or otherwise bypasses the State or county
    24     prison system, the court shall order the person to report
    25     within five calendar days to prison, jail unit, juvenile
    26     facility or other facility to be specified by the court to
    27     provide DNA samples and fingerprints in accordance with this
    28     chapter.
    29     * * *
    30     Section 3.  Title 44 is amended by adding a section to read:
    20080S1265B1728                  - 3 -     

     1  § 2316.1.  Collection from persons accepted from other
     2             jurisdictions.
     3     (a)  Conditional acceptance.--When a person is accepted into
     4  this Commonwealth for supervision from another jurisdiction
     5  through the Interstate Compact for Supervision of Adult
     6  Offenders or under any other reciprocal agreement with any
     7  Federal, state or county agency, or any other provision of law,
     8  whether or not the person is confined or released, the
     9  acceptance shall be conditioned on the offender providing DNA
    10  samples under this chapter if the offender has a record of any
    11  past or present conviction or adjudication that is substantially
    12  similar to a felony sex offense or other specified offense from
    13  any Federal, state or military court. Additional DNA samples
    14  shall not be required if a DNA sample is currently on file with
    15  CODIS or the DNA record.
    16     (b)  Time period.--
    17         (1)  If the person accepted under subsection (a) is not
    18     confined, the DNA sample and fingerprints required by this
    19     chapter shall be provided within five calendar days after the
    20     person reports to the supervising agent or within five
    21     calendar days of notice to the person, whichever occurs
    22     first. The person shall appear and the DNA samples shall be
    23     collected in accordance with the provisions of this chapter.
    24         (2)  If the person accepted under subsection (a) is
    25     confined, the person shall provide the DNA sample and
    26     fingerprints required by this chapter as soon as practical
    27     after receipt in a facility in this Commonwealth.
    28     Section 4.  Sections 2317(a)(1) and 2321(a) and (b) are
    29  amended to read:
    30  § 2317.  Procedures for withdrawal, collection and transmission
    20080S1265B1728                  - 4 -     

     1             of DNA samples.
     2     (a)  Drawing of DNA samples.--
     3         (1)  Each DNA sample required to be drawn pursuant to
     4     [section] sections 2316 (relating to DNA sample required upon
     5     arrest, conviction, delinquency adjudication and certain ARD
     6     cases) and 2316.1 (relating to collection from persons
     7     accepted from other jurisdictions) from persons who are
     8     incarcerated or confined shall be drawn at the place of
     9     incarceration or confinement as provided for in section 2316.
    10     DNA samples from persons who are not ordered or sentenced to
    11     a term of confinement shall be drawn at a prison, jail unit,
    12     juvenile facility or other facility to be specified by the
    13     court. Only those individuals qualified to draw DNA samples
    14     in a medically approved manner shall draw a DNA sample to be
    15     submitted for DNA analysis. Such sample and the set of
    16     fingerprints provided for in paragraph (2) shall be delivered
    17     to the State Police within 48 hours of drawing the sample.
    18         * * *
    19  § 2321.  Expungement.
    20     (a)  General rule.--
    21         (1)  A person whose DNA sample, record or profile has
    22     been included in the State DNA Data Bank or the State DNA
    23     Data Base pursuant to the former DNA Act, former 42 Pa.C.S.
    24     Ch. 47 (relating to DNA data and testing) or this chapter may
    25     request expungement [on the grounds that the conviction or
    26     delinquency adjudication on which the authority for including
    27     that person's DNA sample, record or profile was based has
    28     been reversed and the case dismissed or that the DNA sample,
    29     record or profile was included in the State DNA Data Bank or
    30     the State DNA Data Base by mistake.] if the person files the
    20080S1265B1728                  - 5 -     

     1     request in writing with the State Police and any of the
     2     following apply:
     3             (i)  The State Police receive, for each conviction of
     4         the person of an offense the basis of which that analysis
     5         was or could have been included in the State DNA Data
     6         Bank or the State DNA Data Base, a certified copy of a
     7         final court order establishing that the conviction has
     8         been overturned.
     9             (ii)  The person has not been convicted of an offense
    10         the basis of which that analysis was or could have been
    11         included in the State DNA Data Bank or the State DNA Data
    12         Base and the State Police receive, for each charge
    13         against the person the basis of which the analysis was or
    14         could have been included in the State DNA Data Bank or
    15         the State DNA Data Base, a certified copy of a final
    16         court order establishing that the charge has been
    17         dismissed or has resulted in an acquittal or that no
    18         charge was filed within the applicable time period.
    19             (iii)  The State Police receive clear and convincing
    20         proof that the DNA sample, record or profile was included
    21         in the State DNA Data Bank or the State DNA Data Base by
    22         mistake.
    23         (2)  For purposes of this section, a court order is not
    24     "final" if time remains for an appeal or application for
    25     discretionary review with respect to the order.
    26     (b)  Duty of State Police.--The State Police shall purge all
    27  records and identifiable information in the State DNA Data Bank
    28  or State DNA Data Base pertaining to the person and destroy each
    29  sample, record and profile from the person upon[:
    30         (1)  receipt of a written request for expungement
    20080S1265B1728                  - 6 -     

     1     pursuant to this section and a certified copy of the final
     2     court order reversing and dismissing the conviction; or
     3         (2)  clear and convincing proof that the sample record or
     4     profile was included by mistake.] receipt of the applicable
     5     documents and other materials required in subsection (a).
     6     * * *
     7     Section 5.  This act shall take effect in 60 days.
















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