Report Title:

DNA Registry

Description:

Expands scope of DNA registration law to mandate the collection of DNA samples from all convicted felons; allows DNA samples to be collected by buccal swabs; establishes post conviction relief DNA testing provisions. (SD2)

THE SENATE

S.B. NO.

470

TWENTY-THIRD LEGISLATURE, 2005

S.D. 2

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to the collection of deoxyribonucleic acid for the dna registry.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

FORENSIC IDENTIFICATION

PART I. GENERAL

§   -1 Definitions. In this chapter, unless the context requires otherwise:

"Conviction" means a judgment on a verdict, a plea of guilty or nolo contendere;

"Department" means the police department of the city and county of Honolulu.

"DNA" means deoxyribonucleic acid.

"Print impression" means any fingerprint, thumbprint, palm print, or set of fingerprints or palm prints designated in the department's rules adopted pursuant to section    -3.

"Sample" means human biologic material collected in a manner specified in the department's rules or regulations adopted pursuant to section    -3, including but not limited to, saliva collected by means of buccal swab.

"Specimen" means human biologic material collected in a manner specified in the department's rules or regulations adopted pursuant to section    -3, including, but not limited to, blood.

§   -2 Administration. The department shall be responsible for the management and administration of the State's DNA database and databank identification program and act as the liaison with the Federal Bureau of Investigation (FBI) and other relevant agencies regarding the State's participation in a national DNA database such as the FBI's Combined DNA Index System (CODIS) that allows for the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide.

§   -3 Implementation. (a) The department shall be responsible for implementing this chapter.

(b) The department, the police departments of the counties of Hawaii, Kauai, and Maui, and the department of public safety shall adopt rules to give effect to the intent and purpose of this chapter, and shall ensure that databank blood specimens, buccal swab samples, and print impressions are collected from persons as provided in section    -31 in a timely manner after a conviction, a plea of guilty or no contest, or if the person is found not guilty by reason of insanity.

(c) Records, specimens, samples, data, and other information assembled pursuant to this chapter shall be deemed confidential and may only be disclosed to the extent provided for in part VII of this chapter.

PART II. COLLECTION, ANALYSIS, AND REPOSITORY

§   -21 Collection of blood specimens, buccal swab samples, and print impressions at correctional facility or other detention facility. (a) When blood specimens, buccal swab samples, and print impressions are collected at a correctional facility or other detention facilities, including a private correctional facility, the chief administrative officer of the correctional facility or other detention facility shall be responsible for the following:

(1) Collecting the requisite blood specimens, buccal swab samples, and print impressions from a person convicted of any felony offense during the intake process at that correctional or detention facility, or reasonably promptly thereafter;

(2) Collecting the requisite blood specimens, buccal swab samples, and print impressions as soon as administratively practicable after a person convicted of any felony offense reports to the correctional or detention facility for the purpose of providing blood specimens, buccal swab samples, and print impressions; and

(3) Forwarding the specimens, samples, and print impressions collected pursuant to this chapter to the department, and in compliance with this chapter.

(b) The blood specimens, buccal swab samples, and print impressions shall be collected by a person using a collection kit approved by the department and in accordance with the requirements and procedures set forth in section    -62.

§   -22 Analysis and examination of specimens for identification purposes. (a) The department shall authorize DNA analysis and other forensic identification analysis pursuant to this chapter for identification purposes only.

(b) The department shall perform examinations of print impressions pursuant to this chapter for identification purposes only.

§   -23 Repository of samples and records. (a) The department may designate itself or other appropriate entities as repositories for blood specimens and buccal swab and other biological samples collected. The designated repository entity shall analyze blood specimens and buccal swab samples, and store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records related to the following:

(1) Forensic casework and forensics unknown;

(2) Known and evidentiary specimens and samples from crime scenes or criminal investigations;

(3) Missing or unidentified persons;

(4) Persons required to provide blood specimens, buccal samples, and print impressions under this chapter;

(5) Legally obtained samples; and

(6) Anonymous DNA records used for training, research, statistical analysis of populations, quality assurance, or quality control.

(b) The designated repository entity shall include files as necessary to implement this chapter.

(c) Nothing in this section shall be construed as requiring the designated repository entity to provide blood specimens or buccal swab samples for quality control or other purposes upon request to those who request blood specimens or buccal samples.

(d) Submission of blood specimens, buccal swab samples, or profiles for the state DNA database and data bank program shall include all information as required by the department for ensuring search capabilities and compliance with National DNA Index System standards.

PART III. OFFENDERS SUBJECT TO COLLECTION OF SPECIMENS, SAMPLES, AND PRINT IMPRESSIONS

§   -31 Offenders subject to collection. (a) Any person, not including a juvenile, who is convicted or pleads guilty or no contest to any felony offense, even if the plea is deferred, or is found not guilty by reason of mental disease, disorder, or defect of the felony offense, shall provide buccal swab samples and print impressions of each hand, and, if required by the collecting agency's rules or regulations, blood specimens, as required for law enforcement identification analysis.

(b) Testing shall begin immediately for all persons who have been convicted of murder in any degree or any offense defined in chapter 846E, but shall not begin for other persons until thirty days after statewide publication of notice by the attorney general pursuant to section 1-28.5.

(c) The attorney general notice required under section 1-28.5 may be published in the following stages:

(1) Notice of testing for all persons not subject to testing under subsection (b) and who have been convicted of a class A felony;

(2) Notice of testing for all persons not subject to testing under subsection (b) and who have been convicted of a class B felony; and

(3) Notice of testing for all persons not subject to testing under subsection (b) and who have been convicted of a class C felony.

(d) Nothing in this section shall be construed as prohibiting the collection and analysis of blood specimens, buccal swab samples, or print impressions as a condition of a plea for a non-felony offense.

§   -32 Application to all qualifying persons. (a) The requirement for submission of blood specimens, buccal swab samples, and print impressions shall apply to all persons with a felony offense conviction regardless of the sentence imposed, including a sentence of life without the possibility of parole, any indeterminate term of imprisonment, or any other disposition rendered in the case of a person convicted of a felony offense.

(b) The submission of blood specimens, buccal swab samples, and print impressions by persons convicted of a felony offense shall be applicable regardless of whether the person is placed or confined in any mental hospital or public or private treatment facility.

(c) The submission provisions of this part are mandatory and shall apply regardless of whether the court advises a person convicted of a felony offense that the person shall provide the data bank and database blood specimens, buccal swab samples, and print impressions as a condition of probation, parole, a plea of guilty or no contest, found not guilty by reason of mental disease, disorder, or defect, or any admission to any of the offenses described in section   -31.

§   -33 Notification by prosecutor and inquiry by court. (a) If at any stage of a court proceeding, the prosecutor determines that blood specimens, buccal swab samples, and print impressions required by this chapter have not already been taken from a person convicted of a felony offense, the prosecutor shall notify the court orally on the record, or in writing, and request that the court order collection of the blood specimens, buccal swab samples, and print impressions as required under this chapter. A failure by the prosecutor or any other law enforcement agency to notify the court shall not relieve a person convicted of a felony offense from the obligation to provide blood specimens, buccal swab samples, and print impressions pursuant to this chapter.

(b) Prior to sentencing, the court shall inquire and verify that the blood specimens, buccal swab samples, and print impressions required by this chapter have been obtained. This fact shall be included in the judgment. The judgment issued by the court shall also state that the court has ordered the person to comply with the requirements of this chapter and that the person shall be included in the State's DNA database and data bank program. If the court fails to enter these facts in the judgment, this shall not invalidate a plea, conviction, or any other disposition of the person, or relieve the person from complying with the requirements of this chapter.

§   -34 Blood specimens, buccal swab samples and print impressions required by this chapter for present and past convictions for felony offenses. (a) Blood specimens, buccal swab samples, and print impressions shall be collected from any person following the conviction of a felony offense specified in section    -31.

Within thirty days after the statewide publication of notice by the attorney general as provide in section    -31, each person convicted of a felony offense shall provide the blood specimen, buccal swab sample, and print impressions as soon as administratively practicable after conviction.

(b) If, subsequent to the enactment of this chapter, a person is now subject to the requirements of this chapter and did not have blood specimens, buccal swab samples, and print impressions taken immediately following the previous felony conviction and the person is not confined or incarcerated, the court shall order the person to report within five calendar days to a correctional facility or a state, county, private, or other designated facility to provide the required blood specimens, buccal swab samples, and print impressions in accordance with this chapter.

§   -35 Collection from persons confined or in custody after conviction. Any person, not including a juvenile, who is imprisoned, confined, or placed in a state or correctional facility, the department of public safety facility, a residential treatment program, or any state, county, private, or other facility after a conviction for any felony offense, shall provide buccal swab samples and print impressions and, if required by the collecting agency's rules or regulations, blood specimens, as soon as administratively practicable at the appropriate custodial or receiving institution if:

(1) The person has a record of any past or present felony conviction as provided in section    -31; or

(2) The person has a record of any past or present conviction in any other court, including any state, federal, or military court, of any offense, that, if committed or attempted in this State, would have been punishable as a felony offense under section    -31;

and the person's blood specimens, buccal swab samples, and print impressions are not in the possession of the department or have not been recorded as part of the department's DNA data bank program.

§   -36 Collection from persons on probation, parole, or other release. (a) Any person, not including a juvenile, who has a record of any past or present felony conviction for an offense under section    -31, and who is on probation or parole for any felony conviction shall provide blood specimens, buccal swab samples, and print impressions if:

(1) The person has a record of a past or present felony conviction as provided in section    -31; or

(2) The person has a record of a past or present conviction in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this State, would have been punishable as a felony offense described in section    -31;

and the person's blood specimens, buccal swab samples, and print impressions are not in the possession of the department or have not been recorded as part of the department's DNA data bank program.

(b) The person shall have any required blood specimens, buccal swab samples, and print impressions collected within five calendar days after being notified by the court, or a law enforcement agency or other entity authorized by the department. The blood specimens, buccal swab samples, and print impressions shall be collected in accordance with section    -21 at a correctional facility or a state, county, private, or other facility designated for collection under this chapter.

§   -37 Collection from parole violators and others returned to custody. If a person, not including a juvenile, has been released on parole, furlough, or other release for any felony offense and is returned to a state correctional or other institution for a violation of a condition of the person's parole, furlough, or release, that person shall provide buccal swab samples and print impressions and, if required by the collecting agency's rules or regulations, blood specimens at a state correctional or other receiving institution, if:

(1) The person has a record of any past or present felony conviction as provided in section    -31; or

(2) The person has a record of any past or present conviction in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this State, would have been punishable as a felony offense as provided in section    -31;

and the person's blood specimens, buccal swab samples, and print impressions are not in the possession of the department's DNA laboratory or have not been recorded as part of the department's DNA data bank program.

§   -38 Collection from persons accepted into Hawaii from other jurisdictions. (a) When an offender from another state is accepted into this State under any interstate compact, a reciprocal agreement with any county, state, or federal agency, or under any other provision of law regardless of whether the offender is confined or released, the acceptance shall be conditional on the offender providing blood specimens, buccal swab samples, and print impressions pursuant to this section, if:

(1) The offender has a record of any past or present felony conviction in Hawaii as provided in section   -31, or

(2) The offender has a record of any past or present conviction or adjudication or had a disposition rendered in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as a felony offense described in section    -31.

(b) If the person is not confined, the blood specimens, buccal swab samples, and print impressions required by this section shall be provided within five calendar days after the person reports to the supervising agent or within five calendar days after notice has been provided to the person, whichever occurs first. The person shall report to a correctional facility in the county where the person resides or is temporarily located to have the blood specimens, buccal swab samples, and print impressions collected. The blood specimens, buccal swab samples, and print impressions shall be collected in accordance with the requirements of this chapter.

(c) If the person is confined, the person shall provide the blood specimens, buccal swab samples, and print impressions as soon as administratively practicable after the person's receipt in a state, county, private, or other designated facility.

§   -39 Collection from persons in federal institutions. (a) Subject to the approval of the Director of the Federal Bureau of Investigation, persons confined or incarcerated in a federal prison or any federal institution and who have a record of any past or present felony conviction as provided in section    -31 or of a similar crime under the laws of the United States or any other state that would constitute a felony offense as provided in section    -31, shall be subject to the requirements of this section and shall provide blood specimens, buccal swab samples, and print impressions pursuant to this chapter if any of the following apply:

(1) The person committed a felony offense in Hawaii;

(2) The person was a resident of Hawaii at the time of the felony offense;

(3) The person has any record of a Hawaii conviction for a felony offense as provided in section    -31, regardless of when the crime was committed; or

(4) The person will be released in Hawaii.

(b) The department, upon the request of the United States Department of Justice, shall forward portions of the specimens or samples, taken pursuant to this chapter, to the United States Department of Justice DNA Data Bank Laboratory. The specimens and samples required by this section shall be taken in accordance with the procedures set forth in section    -21. The department is authorized to analyze and upload specimens and samples collected pursuant to this section upon approval of the Director of the FBI.

§   -40 Retroactive application of sections    -34 to    -39. Sections    -34 to    -39 shall have retroactive application. Collection of blood specimens, buccal swab samples, and print impressions shall take place as provided in sections    -34 to    -39 regardless of when:

(1) The person was convicted for a felony offense as provided in section    -31; or

(2) The person was convicted for a similar crime under the laws of the United States or any other state, or pursuant to the United States Code of Military Justice for commission of a felony offense as provided in section    -31 or a similar crime under the laws of the United States or any other state.

§   -41 Collection of replacement specimen. Whenever the department notifies the department of public safety or any other law enforcement agency that a blood specimen, buccal swab sample, or print impression is unusable for any reason, the person who provided the original blood specimen, buccal swab sample, or print impression shall submit to collection of additional blood specimens, buccal swab samples, or print impressions. The department of public safety or other responsible law enforcement agency shall collect additional blood specimens, buccal swab samples, and print impressions from these persons to fulfill the requirements of this section, and shall immediately transmit the blood specimens, buccal swab samples, and print impressions to the department.

PART IV. CRIME SCENE AND RELATED EVIDENCE;

COMPARISON AGAINST FORENSIC IDENTIFICATION DATA

§   -51 Analysis of crime scene samples. Entities that are authorized to analyze crime scene samples and other samples of known and unknown origin and to compare and check the forensic identification profiles, including DNA profiles, of these samples against available DNA and forensic identification data banks and databases in order to establish identity and origin of samples for identification purposes are as follows:

(1) Laboratories that are accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board, accredited by any certifying body approved by the Laboratory Accreditation Board, or accredited by the successor to the Laboratory Accreditation Board;

(2) Any law enforcement crime laboratory designated by the department that is accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board, accredited by any certifying body approved by the Laboratory Accreditation Board, or accredited by the successor to the Laboratory Accreditation Board; and

(3) Any other entity designated by the department by rule or regulation.

§   -52 Anonymous analysis of specimens and samples. Laboratories, including law enforcement laboratories, that are accredited by American Society of Crime Laboratory Directors Laboratory Accreditation Board or any certifying body approved by the Laboratory Accreditation Board that contracts with the department shall perform anonymous analysis of blood specimens and buccal swab samples for forensic identification as provided in this chapter.

§   -53 Analysis of forensic identification profiles. A biological sample obtained from a suspect in a criminal investigation may be analyzed for forensic identification profiles, including DNA profiles, by any private or law enforcement crime laboratory accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board or any certifying body approved by the Laboratory Accreditation Board and compared by the department, in and between, as many cases and investigations as necessary, and searched against the forensic identification profiles, including DNA profiles, stored in the files of the department's DNA data bank or database or any available data banks or databases as part of the department DNA database and data bank program. The law enforcement investigating agency submitting a blood specimen, buccal swab sample, or print impression to the department or law enforcement crime laboratory pursuant to this section shall inform the department within two years as to whether the person remains a suspect in a criminal investigation. Upon written notification from a law enforcement agency that a person is no longer a suspect in a criminal investigation, the department shall remove the suspect's sample from its data bank files. However, any identification, warrant, arrest, or prosecution based upon a data bank or database match shall not be invalidated or dismissed due to a failure to purge or a delay in purging records.

§   -54 Laboratories contributing DNA profiles; accreditation. All laboratories contributing DNA profiles for inclusion in Hawaii's DNA data bank shall be accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board or any certifying body approved by the Laboratory Accreditation Board. Additionally, each laboratory shall submit to the department an annual report required by the American Society of Crime Laboratory Directors Laboratory Accreditation Board or any certifying body approved by the Laboratory Accreditation Board that documents the laboratory's adherence to American Society of Crime Laboratory Directors Laboratory Accreditation Board standards or the standards of any certifying body approved by the Laboratory Accreditation Board. The requirements of this section shall not preclude DNA profiles developed in Hawaii from being searched in the national DNA database or data bank such as the FBI's Combined DNA Index System.

§   -55 Other law enforcement DNA laboratories. Nothing in this chapter shall preclude other law enforcement DNA laboratories from maintaining local forensic databases and data banks or performing forensic identification analyses, including DNA profiling, independent from the department's DNA and forensic identification database and data bank program.

§   -56 Limitation not cause for dismissal. The collection and testing procedures of this chapter are limited to the felony offenses set forth in section    -31, and this limitation is made for the purposes of facilitating the administration of this chapter and shall not be considered cause for dismissing a prosecution or reversing a verdict or disposition.

§   -57 No invalidation based on erroneous placement or retention of specimens, samples, or print impressions. The detention, arrest, adjudication, or conviction of a person, not a juvenile, based upon a data bank match or database information shall not be invalidated if it is determined that the blood specimens, buccal swab samples, or print impressions were obtained, placed, or retained in a data bank or database by mistake.

PART V. SUPPLY OF PARAPHERNALIA AND INSTRUCTIONS

FOR COLLECTION OF SAMPLES; CIVIL OR CRIMINAL LIABILITY

FOR COLLECTION OF SPECIMEN, AND ENTRY OF DATA

§   -61 Blood specimens, buccal swab samples, and print impressions shall be forwarded promptly to the department. The director of public safety, the chief of police, or the administrator of a correctional facility, jail, or other facility where the blood specimens, buccal swab samples, and print impressions were collected shall promptly forward the blood specimens, buccal swab samples, and print impressions to the department. The blood specimens, buccal swab samples, and print impressions shall be collected by a person using a department approved collection kit and in accordance with the requirements and procedures set forth in section    -62.

§   -62 Procedures for the collection and forwarding of samples. (a) The department shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, buccal swab samples, and print impressions. The blood specimens, buccal swab samples, and print impressions shall be forwarded to the department for analysis of DNA and other forensic identification markers. The department shall also provide all print impression cards, mailing envelopes, and instructions for the collection of print impressions. The print impressions, on a form prescribed by the department, shall thereafter be forwarded to the department for maintenance in a file for identification purposes.

(b) If withdrawal of a blood specimen is required by this chapter or by the collecting agency's rules or procedures, the withdrawal of the blood specimen shall be performed in a medically approved manner. Only health care providers trained and certified to draw blood may withdraw the blood specimens for purposes of this chapter.

(c) Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.

(d) Print impressions of each hand shall be taken on forms prescribed by the department. The print impression forms shall be forwarded and maintained by the department. Print impressions taken at the time of the collection of buccal swab samples and blood specimens and shall be placed in the buccal swab sample and blood specimen container and forms as directed by the department. The buccal swab samples, blood specimens, and forms shall be forwarded and maintained by the department.

(e) The law enforcement or custodial agency collecting blood specimens, buccal swab samples, or print impressions shall be responsible for confirming that the person qualifies for entry into the department's DNA database and data bank program prior to collecting the blood specimens, buccal swab samples, or print impressions pursuant to this chapter.

(f) The department is responsible for establishing rules and regulations for entering data bank and database information pursuant to chapter 91.

§   -63 Limitations on civil and criminal liability. (a) Persons authorized to draw blood specimens, obtain buccal swab samples, or print impressions under this chapter for the data bank or database shall not be civilly or criminally liable for:

(1) Withdrawing a blood specimen when it done in accordance with medically accepted procedures;

(2) Obtaining buccal swab samples by scraping inner cheek cells of the mouth; or

(3) Obtaining print impressions,

when performed in accordance with standard professional practices.

(b) There shall be no civil or criminal cause of action against any law enforcement agency, the department, or any employee thereof for a mistake in confirming a person or sample's inclusion within the database or data bank or in placing an entry in a data bank or a database.

(c) The failure of the department or local law enforcement to comply with the provisions of this part shall not invalidate an arrest, plea, conviction, or disposition.

§   -64 Processing of offender specimens. (a) To ensure expeditious and economical processing of offender specimens and samples for inclusion in the FBI's Combined DNA Index System and the State's DNA database and data bank program, the department may contract with other laboratories, whether public or private, including law enforcement laboratories, provided that:

(1) The laboratory shall have the capability of fully analyzing offender specimens or samples within sixty days of receipt; and

(2) The laboratory shall conduct an anonymous analysis of blood specimens and buccal swab samples for forensic identification testing as provided in this chapter and in accordance with the quality assurance requirement established by the FBI for its Combined DNA Index System and the American Society of Crime Laboratory Directors Laboratory Accreditation Board.

(b) The department, contingent upon the availability of sufficient funds, shall immediately contract with other laboratories, whether public or private, including law enforcement laboratories, for the anonymous analysis of specimens or samples of persons listed in section    -31 for forensic identification testing pursuant to subsection (a) and in accordance with the quality assurance requirements established by the FBI for its Combined DNA Index System and the American Society of Crime Laboratory Directors Laboratory Accreditation Board for any blood specimens or buccal swab samples that are not fully analyzed and uploaded into the Combined DNA Index System database within six months of the receipt of the reference blood specimens or buccal swab samples by the department.

PART VI. REVERSAL, DISMISSAL OR ACQUITTAL;

REQUEST FOR EXPUNGEMENT OF INFORMATION; PROCEDURE;

SPECIMENS FROM PERSONS NO LONGER CONSIDERED SUSPECTS

§   -71 Person with no past or present felony conviction; inclusion within the State's DNA database and data bank program. A person whose DNA profile has been included in the data bank pursuant to this chapter shall have the person's DNA specimen and sample destroyed and searchable database profile expunged from the data bank program pursuant to the procedures set forth in section    -72 if:

(1) The person has no past or present felony conviction;

(2) The felony conviction for which the person's DNA profile has been included in the data bank has been reversed, dismissed or a judgment of acquittal has been entered by a court having jurisdiction; and

(3) There is no legal basis for retaining the blood specimen or buccal swab sample or searchable profile.

§   -72 Written request to have the person's specimen and sample destroyed and searchable database profile expunged from the data bank program. (a) Pursuant to section    -71, a person who has no past or present felony conviction and for whom there is no legal basis for retaining the blood specimen, buccal swab sample, or searchable profile may make a written request to have the person's blood specimen, buccal swab sample destroyed and searchable database profile expunged from the data bank program if the underlying felony conviction or disposition serving as the basis for including the DNA profile has been reversed and the case is dismissed.

(b) The person requesting that the data bank entry be expunged shall send a copy of the person's request to:

(1) The trial court of the circuit that entered the conviction in the case;

(2) The department, and

(3) The prosecuting attorney of the county in which the person was convicted,

with proof of service on all parties. In the absence of any other legal basis for denying the request, the court has the discretion to grant or deny the request for expungement.

§   -73 Destruction of samples and expungement of searchable DNA database profile. (a) Except as provided in this section, the department shall destroy the sample and expunge the searchable DNA database profile of person who does not have a present or past felony conviction upon receipt of a court order that verifies that the applicant has made the necessary showing at a noticed hearing including:

(1) A written request for expungement pursuant to this section;

(2) A certified copy of the court order reversing and dismissing the conviction or case, or a letter from the prosecuting attorney certifying that the underlying conviction has been reversed and the case dismissed;

(3) Proof of written notice to the prosecuting attorney and the department that expungement has been requested; and

(4) A court order verifying that no retrial or appeal of the case is pending, it has been at least one hundred eighty days since the defendant has notified the prosecuting attorney and the department of the expungement request, and the court has not received an objection from the department or the prosecuting attorney.

(b) The department shall destroy any blood specimen or buccal swab sample collected from the person and any searchable DNA database profile pertaining to the person upon an order of the court, unless the department determines that the person is subject to the provisions of this chapter because of a past felony conviction and is, or has become, obligated to submit a blood specimen or buccal swab as a result of a separate conviction, a plea of guilty, or is found not guilty by reason of insanity for an offense described in section -31, or as a condition of a plea.

(c) The department is not required to destroy an autoradiograph or other item obtained from a blood specimen if evidence relating to another person subject to the provisions of this chapter would be destroyed.

(d) Any identification, warrant, probable cause to arrest, or arrest based upon a data bank match shall not be invalidated due to a failure to expunge or a delay in expunging records.

(e) Notwithstanding any other provision of law to the contrary, the department shall not be required to expunge a DNA profile or forensic identification information or destroy or return specimens, samples, or print impressions taken pursuant to this section based on a termination of a person's duty to register pursuant to chapter 846E.

§   -74 No authorization to relieve a person of administrative duty to provide specimens, samples, or print impressions. Notwithstanding any other provision of law to the contrary, a judge is not authorized to relieve a person of the separate administrative duty to provide blood specimens, buccal swab samples, or print impressions required by this chapter if the person:

(1) A felony conviction as provided in section    -31;

(2) Is found not guilty by reason of insanity or pleads no contest to a felony offense under section    31; or

(3) Is given a deferred acceptance of plea under chapter 853.

§   -75 Not a basis for invalidation of identification or suppression of identification evidence. Nothing in this part shall be construed to invalidate an otherwise valid identification of a person by means of DNA testing or to provide the basis for a suppression of otherwise admissible evidence related to identification of a person based on DNA testing.

PART VII. EXEMPTION OF SPECIMEN FROM DISCLOSURE;

CONFIDENTIALITY

§   -81 Exemption of specimen from disclosure. (a) All DNA and forensic identification profiles and other identification information retained by the department pursuant to this chapter shall be exempt from any law requiring disclosure of information to the public and shall be confidential, except as otherwise provided in this part.

(b) All evidence and forensic samples containing biological material retained by the department or other state or local law enforcement agency shall be exempt from any law requiring disclosure of information to the public relating to the return of blood specimens, buccal swab samples, or print impressions.

§   -82 Confidentiality. (a) Non-DNA forensic identification information may be filed with the other computerized data bank or database systems maintained by the department.

(b) The fact that the blood specimens, buccal swab samples, and print impressions required under this chapter have been received by the department shall be included in the state summary criminal history information as soon as administratively practicable.

(c) The print impressions of each hand shall be filed and maintained by the department, and may be included in the state summary criminal history information.

(d) DNA samples, DNA profiles, and other forensic identification information shall be released only to law enforcement agencies, including, but not limited to, the department of the attorney general, parole officers of the department of public safety, hearing officers of the parole authority, probation officers, the department, and prosecuting attorneys' offices, unless otherwise specifically authorized this part.

(e) Dissemination of DNA specimens, samples, and DNA profiles, and other forensic identification information to law enforcement agencies and prosecutors outside this State shall be performed in conformity with the provisions of this chapter.

(f) A person's DNA and other forensic identification information developed pursuant to this chapter shall be available to the person's defense counsel upon court order.

(g) Except as provided in subsection (f), and to protect the confidentiality and privacy of database and data bank information, the department and DNA laboratories shall not be compelled in a criminal or civil proceeding to provide the following:

(1) Any DNA profile or forensic identification database; or

(2) Data bank information or its computer database program software or structures

to any person or party seeking such records or information whether by subpoena or discovery, or other procedural device or inquiry.

§   -83 Knowing use or disclosure of a specimen, sample, or DNA profile other than for criminal identification or exclusion purposes. (a) If any employee of the department knowingly uses an offender blood specimen, buccal swab sample, or DNA profile collected pursuant to this chapter for other than criminal identification or exclusion purposes or knowingly discloses DNA or other forensic identification information developed pursuant to this section to an unauthorized individual or agency, other than for criminal identification, exclusion purposes or other than for the identification of missing persons, in violation of this chapter, the department shall be liable in civil damages to the donor of the DNA identification information in the amount of $5,000 for each violation, in addition to attorney's fees and costs. In the event of multiple disclosures, the total damages available to the donor of the DNA shall be limited to $50,000, in addition to attorney's fees and costs.

(b) Notwithstanding any other law to the contrary, this shall be the sole and exclusive remedy against the department and its employees available to the donor of the DNA. The department's employee disclosing DNA identification information in violation of this chapter shall be absolutely immune from civil liability under this or any other law.

§   -84 When disclosure is not a violation. (a) It shall not be a violation of this chapter for a law enforcement agency, in its discretion, to publicly disclose:

(1) The fact of a DNA profile match;

(2) The name of the person identified by the DNA match when this match is the basis of law enforcement's investigation, arrest, or prosecution of a particular person; or

(3) The identification of a missing or abducted person.

(b) It shall not be a violation of this chapter to furnish DNA or other forensic identification information of the person to the person's defense counsel for criminal defense purposes in compliance with discovery.

(c) It shall not be a violation of this chapter for law enforcement to release DNA and other forensic identification information developed pursuant to this chapter:

(1) To a jury or grand jury;

(2) In a document filed with a court or administrative agency;

(3) As part of a judicial or administrative proceeding; or

(4) As part of a public transcript or record of proceedings when, in the discretion of law enforcement, disclosure is necessary because the DNA information pertains to the basis for law enforcement's identification, arrest, investigation, prosecution, or exclusion of a particular person related to the case.

(d) It shall not be violation of this chapter to include information obtained from a file in a transcript or record of a judicial proceeding, or in any other public record when the inclusion of the information in the public record is authorized by a court, statute, or decisional law.

(e) It shall not be a violation of this chapter for the department, or an organization retained as an agent of the department, or a local public laboratory to use anonymous records or criminal history information obtained pursuant to this chapter for training, research, statistical analysis of populations, or quality assurance or quality control.

§   -85 Methodology and procedures to be made public. The department shall make available to the public the methodology and procedures to be used in its DNA program prior to the commencement of DNA testing in its laboratories or within thirty days after the effective date of this chapter, whichever is later. The department shall review and consider on an ongoing basis the findings and results of any peer review and validation studies submitted to the department by members of the relevant scientific community experienced in the use of DNA technology. This material shall be available to criminal defense counsel upon court order.

§   -86 Confidentiality of computer software and database structures. In order to maintain the computer system security of the department's DNA database and databank program, the computer software and database structures used by the DNA laboratory of the department to implement this chapter shall be confidential.

PART VIII. DATA SHARING; POPULATION DATABASE OR DATA BANK INFORMATION; PROTOCOL, QUALITY CONTROL, OR METHODOLOGY;

SAMPLE SHARING; LOCAL DNA LABORATORIES; DISPOSAL

§   -91 Department permitted to share data, information, and samples. (a) Nothing in this chapter shall prohibit the department from the sharing or disseminating of the population database, data bank information, DNA profile, forensic identification database, data bank information, analytical data and results generated for forensic identification database and data bank purposes, protocol and forensic DNA analysis methods and quality assurance, and quality control procedures with any of the following:

(1) Federal, state, or local law enforcement agencies;

(2) Crime laboratories, whether public or private, that serve federal, state, and local law enforcement agencies that have been approved by the department;

(3) The attorney general's office of any state;

(4) Any state or federally authorized auditing agent or board that inspects or reviews the work of the department for the purpose of ensuring that the department meets American Society of Crime Laboratory Directors Laboratory Accreditation Board LAB and Federal Bureau of Investigation standards for accreditation and quality assurance standards under this chapter and for the State's participation in the Federal Bureau of Investigation's Combined DNA Index System and other national or international crime-solving networks; or

(5) Any third party that the department deems necessary to assist the department's crime laboratory with statistical analyses of the population data base or to assist in the recovery or identification of human remains for humanitarian purposes, including the identification of missing persons.

(b) The population databases and data banks of the department may be made available and searched by the Federal Bureau of Investigation and any other agency participating in the Federal Bureau of Investigation's Combined DNA Index System or any other national or international law enforcement database or data bank system.

(c) The department may provide portions of biological samples, including blood specimens, saliva samples, and buccal swab samples collected pursuant to this chapter to local public law enforcement DNA laboratories for identification purposes provided that the following privacy provisions are followed by the local public law enforcement laboratory:

(1) The procedures used by the local public DNA laboratory for the handling of blood specimens and buccal swab samples and the disclosure of results shall be identical to those established by the department pursuant to this chapter;

(2) The methodologies and procedures used by the local public DNA laboratory for DNA or forensic identification analysis shall be compatible with those used by the department, or are determined by the department to be valid and appropriate for identification purposes;

(3) Tests of value to law enforcement for identification purposes shall be performed and a copy of the results of the analysis shall be sent to the department;

(4) All provisions of this section concerning privacy and security shall be followed; and

(5) The local public law enforcement DNA laboratory shall assume all costs for securing the blood specimens and buccal swab samples as well as provides the appropriate tubes, labels, and materials necessary to secure the specimens and samples.

§   -92 In-state DNA laboratories. Any in-state DNA laboratory that produces DNA profiles of known reference samples for inclusion within the permanent files of the State's DNA data bank program shall follow the instructions of the department for the production of DNA profiles.

§   -93 Disposal of unused and expired specimens. The department shall be authorized to dispose of unused blood specimens and buccal swab samples, unused portions of blood specimens and buccal swab samples, and expired blood specimens and buccal swab samples in a reasonable manner and in compliance with section    -126, provided that the disposal method shall protect the identity and origin of specimens and samples from disclosure to third persons who are not a part of law enforcement.

PART IX. POWERS NOT AFFECTED

§   -101 Law enforcement officer powers under other laws not affected. Nothing in this chapter shall limit or abrogate any existing authority of law enforcement officers to take, maintain, store, and utilize DNA or forensic identification markers, blood specimens, buccal swab samples, saliva samples, or print impressions for identification purposes.

§   -102 Authority to maintain DNA data banks and other databases not affected. (a) Nothing in this chapter shall be construed to restrict the authority of local law enforcement to maintain its own DNA-related databases or data banks, or to restrict the department's access to data banks and databases created by other statutory authority, including, but not limited to, databases related to fingerprints, firearms and other weapons, child abuse, domestic violence deaths, child deaths, driving offenses, missing persons, sex offender registration, and criminal justice statistic.

(b) Nothing in this chapter shall be construed to limit the authority of the medical examiner of the city and county of Honolulu and the county coroners or their agents, in the course of their scientific investigation, to utilize genetic and DNA technology to inquire into and determine the circumstances, manner, and cause of death, or to employ or use outside laboratories, hospitals, or research institutions that utilize genetic and DNA technology.

PART X. CRIMES

§   -111 Refusal or failure to provide specimen for forensic identification. (a) A person commits the offense of refusal or failure to provide specimen for forensic identification if the person refuses or fails to give blood specimens, buccal swab samples, print impressions required by this chapter, after the person has received written notice from the department, the department of public safety, any law enforcement personnel, or officer of the court that the person is required to provide each of the blood specimens, buccal swab samples, and print impressions required by this chapter.

(b) Refusal or failure to provide specimen for forensic identification is a misdemeanor.

§   -112 Fraudulent use or manipulation of biometric sample or information. (a) A person commits the offense of fraudulent use or manipulation of biometric sample or information if the person is required to submit a specimen sample or print impression pursuant to this chapter and the person intentionally or knowingly:

(1) Facilitates the collection of a wrongfully attributed blood specimen, buccal swab sample, or print impression, with the intent that a government agent or employee be deceived as to the origin of a DNA profile or as to any identification information associated with a blood specimen, buccal swab sample, or print impression required for submission under this chapter; or

(2) Tampers with any blood specimen, buccal swab sample, print impression, or the collection container for any blood specimen or buccal swab sample, with the intent that any government agent or employee be deceived as to the identity of the person to whom the specimen, sample, or print relates.

(b) Fraudulent use or manipulation of biometric sample or information is a class C felony.

§   -113 Unauthorized disclosure of DNA sample or profile. (a) A person commits the offense of unauthorized disclosure of DNA sample or profile if the person intentionally or knowingly:

(1) Uses an offender sample or DNA profile other than for criminal identification or exclusion purposes; or

(2) Discloses DNA or other forensic identification information developed under this chapter to an unauthorized individual or agency, other than for criminal identification or exclusion.

(b) Unauthorized disclosure of DNA sample or profile is a misdemeanor.

§   -114 Use of DNA sample or profile for financial gain. (a) A person commits the offense of use of DNA sample or profile for financial gain if the person, for the purpose of financial gain, intentionally or knowingly:

(1) Uses an offender sample or DNA profile other than for criminal identification or exclusion purposes; or

(2) Discloses DNA or other forensic identification information developed pursuant to this chapter to an unauthorized individual or entity, other than for criminal identification or exclusion purposes.

(b) Use of DNA sample or profile for financial gain is a misdemeanor for which, in addition to any other penalty provided by the penal code for a misdemeanor, a fine shall be imposed that is an amount three times that of any financial gain received or $10,000, whichever is greater.

PART XI. POSTCONVICTION DNA TESTING

§   -121 Petition for postconviction DNA testing. Notwithstanding any other provision of law governing postconviction relief, a person convicted of a felony offense may at any time file a petition requesting the forensic DNA testing of any evidence that was secured in relation to the investigation or prosecution that resulted in the judgment of conviction, and may contain biological evidence. Persons eligible for postconviction DNA testing shall include:

(1) Persons convicted on a plea of guilty or nolo contendere;

(2) Persons currently incarcerated, serving a sentence of probation, or who have already been released on parole; and

(3) Persons who have completed serving their sentences.

§   -122 Proceedings. The petitioner shall be granted a full, fair, and prompt hearing upon the filing of a motion under this part. The petitioner shall serve a copy of the motion upon the attorney for the State. The State shall file its response to the motion within thirty days of receipt of service. The court shall, no sooner than thirty and no later than ninety days after the motion is filed, hear the motion.

§   -123 Order for postconviction DNA testing. (a) The court shall provide the State with notice and an opportunity to respond to a motion for postconviction DNA testing.

(b) After the hearing on the motion, the court shall order DNA testing if the court determines:

(1) A reasonable probability exists that the petitioner would not have been convicted, or would have received a lesser sentence, if favorable results had been obtained through DNA testing at the time of the original prosecution;

(2) One or more of the items of evidence that the petitioner seeks to have tested is still in existence;

(3) The evidence to be tested was secured in relation to the felony offense that is the basis of the challenged conviction, and:

(A) Was not previously subjected to DNA testing; or

(B) Although previously subjected to DNA testing, can be subjected to additional DNA testing that provides a reasonable likelihood of more probative results;

(4) The chain-of-custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect or, if the chain-of-custody does not establish the integrity of the evidence, the testing itself has the potential to establish the integrity of the evidence. For purposes of this part, evidence that has been in the custody of law enforcement, other government officials, or a public or private hospital shall be presumed to satisfy the chain-of-custody requirement of this paragraph, absent specific evidence of material tampering, replacement, or alteration; and

(5) The application for testing is made for the purpose of demonstrating innocence or for a reduction in sentence, and not to unreasonably delay the execution of a sentence or the administration of justice.

§   -124 Counsel. (a) The court, at any time, during proceedings under this part, may appoint counsel for an indigent petitioner.

(b) If the petitioner has filed pro se, upon a showing that DNA testing may be material to the petitioner's claim of wrongful conviction, the court shall appoint counsel for the petitioner.

(c) The court, in its discretion, may refer pro se requests for DNA testing to qualified parties for further review, including, but not limited to, indigent defense organizations or clinical legal education programs, without appointing those parties as counsel.

(d) If the petitioner has retained private pro bono counsel, including, but not limited to, counsel from a nonprofit organization that represents indigent persons, the court, in its discretion, may award reasonable attorney's fees and costs at the conclusion of the litigation.

§   -125 Discovery. (a) Any time after a petition has been filed under this part, the court may:

(1) Order the State to locate and provide the petitioner with any documents, notes, logs, or reports relating to items of physical evidence collected in connection with the case, or assist the petitioner in locating items of biological evidence that the State contends have been lost or destroyed;

(2) Order the State to take reasonable measures to locate biological evidence that may be in its custody, or to assist the petitioner in locating evidence that may be in the custody of a public or private hospital, laboratory, or other facility; or

(3) Order the production of laboratory reports prepared in connection with the DNA testing, as well as the underlying data, and the laboratory notes if the evidence had previously been subjected to DNA testing.

(b) If any DNA or other biological evidence testing was previously conducted by either the prosecution or defense without the knowledge of the other party, this fact and the test results shall be disclosed in the postconviction motion for DNA testing or in the response to the postconviction motion for DNA testing.

(c) If the court orders DNA testing in connection with a proceeding brought under this part, the court shall order the production of any laboratory reports prepared in connection with the DNA testing, and, in its discretion, may order the production of the underlying data, bench notes, or other laboratory notes.

(d) The results of any postconviction DNA testing conducted under this part shall be disclosed to the prosecution, the petitioner, and the court.

§   -126 Preservation of evidence. (a) Notwithstanding any other provision of law to the contrary, all appropriate governmental entities shall retain all items of physical evidence that contain the biological material of a person that is secured in connection with a criminal case for the period of time that the person remains incarcerated, on probation or parole, civilly committed, or subject to registration as a sex offender unless a court order permits the destruction of these items. This requirement shall apply regardless of whether a petition for postconviction DNA testing has been filed as well as during the pendency of postconviction proceedings authorized under this part. The agency or court authorizing the release of a person from incarceration, parole, probation, civil commitment, or sex offender registration requirements, shall notify the agency in custody of any physical evidence related to the released person's custody in writing as soon as practicable after the release of the person. If a petition for postconviction DNA testing has been filed under this part, the State shall prepare an inventory of the evidence related to the case and submit a copy of the inventory to the defense and the court. If evidence is intentionally destroyed after the filing of a petition under this part, the court may impose appropriate sanctions on the responsible party or parties.

(b) For the purposes of this section, "biological evidence" means:

(1) The contents of a sexual assault examination kit; or

(2) Any item that contains blood, semen, hair, saliva, skin tissue, or other identifiable biological material, whether that material is catalogued separately (i.e., on a slide, swab, or in a test tube) or is present on other evidence, including, but not limited to, clothing, ligatures, bedding or other household material, drinking cups, and cigarettes.

§   -127 Choice of laboratory. If the court orders DNA testing pursuant to this part, the DNA testing shall be conducted by a facility mutually agreed upon by the petitioner and by the State and approved by the court. If the parties are unable to agree, the court shall designate the testing facility and provide the parties with a reasonable opportunity to be heard on the choice of the laboratory. The court shall impose reasonable conditions on the testing to protect the parties' interests in the integrity of the evidence and the testing process.

§   -128 Payment. If DNA testing under this part is performed at a state or county crime laboratory, the State shall bear the costs of the testing. If testing is performed at a private laboratory, the court may require either the petitioner or the State to pay for the testing, as the interests of justice require. If the state or county crime laboratory does not have the ability or resources to conduct the type of DNA testing to be performed, the State shall bear the costs of testing at a private laboratory that has the necessary capabilities.

§   -129 Appeal. The petitioner shall have the right to appeal a decision denying postconviction DNA testing.

§   -130 Successive petitions. (a) If the petitioner has filed a prior petition for DNA testing under this part or any other provision of law, the petitioner may file, and the court shall adjudicate, a successive petition or petitions under this part; provided that the petitioner asserts new or different grounds for relief, including, but not limited to, factual, scientific, or legal arguments not previously presented, or the availability of more advanced DNA technology.

(b) The court, in its discretion, may adjudicate any successive petition if the interests of justice so require.

§   -131 Additional orders. (a) The court, in its discretion, may make or issue any orders as may be appropriate. This includes, but is not limited to, designating:

(1) The type of DNA analysis to be used;

(2) The testing procedures to be followed;

(3) The preservation of a portion of the sample for replicating the testing;

(4) Additional DNA testing, if the results of the initial testing are inconclusive or merit additional scientific analysis; and

(5) The collection and DNA testing of elimination samples from third parties.

(b) DNA profile information from biological samples taken from any person pursuant to a motion for postconviction DNA testing shall be exempt from disclosure as provided under part VII of this chapter.

§   -132 Procedure after testing results are obtained. (a) If the results of forensic DNA testing ordered under this part are favorable to the petitioner, the court shall schedule a hearing to determine the appropriate relief to be granted. Based on the results of the testing and any evidence or other matter presented at the hearing, the court shall enter any order that serves the interests of justice, including:

(1) An order setting aside or vacating the petitioner's judgment of conviction or judgment of not guilty by reason of mental disease or defect;

(2) An order granting the petitioner a new trial or fact-finding hearing;

(3) An order granting the petitioner a new sentencing hearing, commitment hearing, or dispositional hearing;

(4) An order discharging the petitioner from custody;

(5) An order specifying the disposition of any evidence that remains after the completion of the testing;

(6) An order granting the petitioner additional discovery on matters related to DNA test results or the conviction or sentence before the court, including, but not limited to, documents pertaining to the original criminal investigation, or the identities of other suspects; and

(7) An order directing the State to place any unidentified DNA profile obtained from postconviction DNA testing into the state or federal databases, or both.

(b) If the results of the tests are not favorable to the petitioner, the court:

(1) Shall dismiss the petition; and

(2) May make any further orders that are appropriate, including:

(A) An order providing that the parole board or a probation department be notified of the test results; or

(B) An order requesting that the petitioner's DNA profile be added to the state's DNA database if the profile is not already in the database.

§   -133 Consent. Nothing in this part shall prohibit the petitioner and the State from conducting postconviction DNA testing upon agreement of the parties. Notwithstanding any other provision of law governing postconviction relief, if DNA test results are obtained under testing conducted upon consent of the parties which are favorable to the petitioner, the petitioner may file, and the court shall adjudicate, a motion for postconviction relief under the provisions of this part."

SECTION 2. Section 701-108, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:

"(3) If the period prescribed in subsection (2) has expired, a prosecution may nevertheless be commenced for:

(a) Any offense an element of which is either fraud or a breach of fiduciary obligation within three years after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is oneself not a party to the offense, but in no case shall this provision extend the period of limitation by more than six years from the expiration of the period of limitation prescribed in subsection (2); [and]

(b) Any offense based on misconduct in office by a public officer or employee at any time when the defendant is in public office or employment or within two years thereafter, but in no case shall this provision extend the period of limitation by more than three years from the expiration of the period of limitation prescribed in subsection (2)[.]; and

(c) Any felony offense involving evidence containing deoxyribonucleic acid from the offender, if a test confirming the presence of deoxyribonucleic acid is performed prior to expiration of the period of limitation prescribed in subsection (2) and the identity of the offender is unknown, but in no case shall this provision extend the period of limitation by more than ten years from the expiration of the period of limitation prescribed in subsection (2)."

SECTION 3. Section 701-118, Hawaii Revised Statutes, is amended by amending the definition of "person," "he," "him," "actor," and "defendant" to read as follows:

"(7) "Person," "he," "him," "actor," and "defendant" include any natural person, including any natural person whose identity can be established by means of scientific analysis, including, but not limited to, scientific analysis of deoxyribonucleic acid and fingerprints, whether or not the natural person's name is known, and, where relevant, a corporation or an unincorporated association;"

SECTION 4. Section 706-603, Hawaii Revised Statutes, is amended to read as follows:

"§706-603 [Mental and medical examination; deoxyribonucleic acid collection. (1) As used in this section, unless the context otherwise requires:

"Conviction" means that a verdict has been rendered by a judge or jury, or a plea of guilty or nolo contendere has been accepted by the court.

"DNA" means deoxyribonucleic acid.

"Licensed psychologist" means psychologists licensed under chapter 465 but also includes psychologists exempt from licensure under section 465-3(a)(3).

"Sexual offense" means an offense as defined in chapter 846E as a sexually violent offense or a criminal offense against a victim who is a minor.

"Violent offense" means murder, or attempted murder, in any degree.

(2) Before imposing sentence, the court may order a defendant who has been convicted of a felony or misdemeanor to submit to mental or other medical observation and examination for a period not exceeding sixty days or a longer period, not to exceed the length of permissible imprisonment, as the court determines to be necessary for the purpose. In addition thereto or in the alternative, the court may appoint one or more qualified psychiatrists, physicians, or licensed psychologists to make the examination. The examiner or examiners shall be appointed from a list of certified examiners as determined by the state department of health. The report of the examination shall be submitted to the court.

(3) After entry of a plea of guilty or no contest or return of a verdict of guilty, a defendant who has been convicted of a sexual or violent offense shall provide two samples of blood for DNA analysis.

(4) A defendant who has been convicted of a sexual or violent offense and who is in custody at a jail, prison, hospital, school, or other institution shall provide two samples of blood for DNA analysis. The person in charge of such an institution, or that person's designee, shall arrange for the sample to be collected and analyzed.

(5) A defendant who has been convicted of a sexual or violent offense and who is not in custody shall report in person to any police station in the county in which the defendant resides or is present to schedule an appointment to provide two samples of blood for DNA analysis. A defendant required to report to a police station under this subsection shall do so within:

(a) Thirty days of July 20, 1998;

(b) Thirty days of conviction; or

(c) Thirty days after arrival in this State, if the defendant expects to be present in this State for a period exceeding thirty days.

(6) A defendant who has been charged with a sexual or violent offense and who has been found unfit to proceed or acquitted pursuant to chapter 704, or any state, federal, or military law similar to chapter 704 shall provide two samples of blood for DNA analysis. The person in charge of the jail, prison, hospital, school, or other institution where the defendant is in custody, or that person's designee, shall arrange for the sample to be collected and analyzed. A defendant who is not in custody and who is required to provide blood under this subsection shall report in person to any police station in the county in which the defendant resides or is present to schedule an appointment to provide two samples of blood. A defendant required to report to a police station under this subsection shall do so within:

(a) Thirty days of July 20, 1998;

(b) Thirty days of the release following an acquittal or finding of unfitness to proceed under chapter 704; or any state, federal, or military law similar to chapter 704; or

(c) Thirty days after arrival in the State,

if the defendant resides or expects to be present in the State for a period exceeding thirty days.

(7) Blood withdrawn pursuant to this section shall be withdrawn only by a person authorized to withdraw blood under section 291E-12. The results shall be recorded, preserved, and disseminated in a manner consistent with the requirements of chapter 846. A defendant who has already provided the necessary samples of blood pursuant to this section shall be relieved of any further requirement to provide blood for DNA analysis, unless the court orders otherwise.

(8)] DNA analysis monetary assessment; DNA registry special fund. (1) In addition to any disposition authorized by chapter 706 or 853, [a] every defendant convicted of [a sexual or violent]:

(a) A felony offense [after July 20, 1998 may] shall be ordered to pay a monetary assessment of $500 or the actual cost of the DNA analysis, whichever is less. The court [shall not order the defendant to pay] may reduce the monetary assessment [unless] if the court finds, based on evidence presented by the defendant that is not rebutted by the State, that the defendant is [or] not and will not be able to pay the full monetary assessment[.] and, based on these finding, shall order the defendant to pay an assessment that the defendant shall be able to pay within five years.

(b) For the purpose of implementing chapter    , there shall be levied an additional penalty of $1 for every $10 or fraction thereof, upon every fine or penalty imposed and collected by the courts for all criminal offenses and traffic offenses, including all fines or penalties imposed pursuant to title 17, provided that fines for parking offenses shall be excluded.

(c) Notwithstanding any other law to the contrary, the assessment provided by this section shall be in addition to, and not in lieu of, and shall not be used to offset or reduce, any fine or restitution authorized or required by law. All assessments shall be paid into the DNA registry special fund established in subsection [(9).] (2).

[(9)] (2) There is established a special fund to be known as the DNA registry special fund which shall be administered by the attorney general. The fund shall consist of:

(a) All assessments ordered pursuant to subsection [(8);] (1);

(b) All other moneys received by the fund from any other source; and

(c) Interest earned on any moneys in the fund.

Moneys in the DNA registry special fund shall be used for DNA collection, DNA testing, and related costs of recording, preserving, and disseminating DNA information pursuant to this section[.] and chapter    .

[(10)] (3) Restitution to the victim of a sexual or violent crime shall be made before payment of the monetary assessment.

[(11) Any person required to provide blood samples under this section who negligently or recklessly fails to comply shall be guilty of a misdemeanor; and any person who intentionally or knowingly fails to provide blood samples under this section shall be guilty of a class C felony.]"

SECTION 5. There is appropriated out of the DNA registry special fund the sum of $ , or so much thereof as may be necessary, for fiscal year 2005-2006 to carry out the purposes of this Act.

The sum appropriated shall be expended by the department of the attorney general to carry out the purposes of this Act including, but not limited to, reimbursement to the county police departments and the department of public safety for costs incurred in carrying out the purposes of this Act.

SECTION 6. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2005-2006, to be deposited into the DNA registry special fund.

The sum appropriated shall be expended by the department of the attorney general to carry out the purposes of this Act including, but not limited to, reimbursement to the county police departments and the department of public safety for costs incurred in carrying out the purposes of this Act.

SECTION 7. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect on July 1, 2005.