A BILL TO BE ENTITLED
AN ACT to authorize the collection and analysis of dna samples from individuals arrested for felony offenses, to provide for the expungement of dna records, to strengthen provisions relating to the confidentiality of such dna records, and to increase the cost of court to cover the expenses of DNA collection and analysis.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 15A‑266 reads as rewritten:
"§ 15A‑266.  Short title.
This Article may be cited as the DNA Database and Databank Act of 2010. SECTION 2.  G.S. 15A‑266.1 reads as rewritten:
"§ 15A‑266.1.  Policy.
It is the policy of the State to assist federal, State, and local criminal justice and law enforcement agencies in the identification, detection, or exclusion of individuals who are subjects of the investigation or prosecution of felonies or violent crimes against the person. Identification, detection, and exclusion are facilitated by the analysis of biological evidence that is often left by the perpetrator or is recovered from the crime scene. The analysis of biological evidence can also be used to identify missing persons, unidentified human remains, and victims of mass disasters. Therefore, it is in the best interests of the State to establish a DNA database and DNA databank containing DNA samples submitted by persons arrested for felony offenses, persons required to register as sex offenders, and persons convicted of certain misdemeanor and felony offenses. Additionally, the State DNA database and DNA databank may include DNA records and samples necessary for the identification of missing persons and unidentified human remains. The General Assembly also finds that a match between casework evidence DNA samples from a criminal investigation and DNA samples from a State or federal DNA database of certain offenders and arrestees may be used to sustain probable cause for the issuance of a warrant to obtain the DNA sample from these individuals."
SECTION 3.  G.S. 15A‑266.2 reads as rewritten:
"§ 15A‑266.2.  Definitions.
As used in this Article, unless another meaning is specified or the context clearly requires otherwise, the following terms have the meanings specified:
(1)	"CODIS" means the FBI's national DNA identification index system that allows the storage and exchange of DNA records submitted by federal, State and local forensic DNA laboratories. The term "CODIS" is derived from Combined DNA Index  (NDIS) administered and operated by the Federal Bureau of Investigation.
(1a)	"Custodial Agency" means the governmental entity in possession of evidence collected as part of a criminal investigation or prosecution. 
(2)	"DNA" means deoxyribonucleic acid. DNA is located in the cells and provides an individual's personal genetic blueprint. DNA encodes genetic information that is the basis of human heredity and forensic identification.
(3)	"DNA Record" means DNA identification information stored in the State DNA Database or CODIS for the purpose of generating investigative leads or supporting statistical interpretation of DNA test results. The DNA record is the result obtained from the DNA analysis. The DNA record is comprised of the characteristics of a DNA sample which are of value in establishing the identity of individuals. The results of all DNA identification analyses on an individual's DNA sample are also collectively referred to as the DNA profile of an individual.
(4)	"DNA Sample" means blood, cheek swabs, or any biological sample containing cells provided by any person with respect to offenses covered by this Article or submitted to the State Bureau of Investigation pursuant to this Article for analysis pursuant to a criminal investigation or storage or both.
(5)	"FBI" means the Federal Bureau of Investigation.
(5a)	"NDIS" means the National DNA Index System that is the national DNA database system of DNA records that meet federal quality assurance and privacy standards.
(6)	"SBI" means the State Bureau of Investigation. The SBI is responsible for the policy, management, and administration of the State DNA identification record system to support law enforcement and other criminal justice agencies.
(7)	"State DNA Database" means the SBI's DNA identification record system to support law enforcement. It is administered by the SBI and provides DNA records to the FBI for storage and maintenance in CODIS. The SBI's DNA Database system is the collective capability provided by computer software and procedures administered by the SBI to store and maintain DNA records related  to: forensic casework; convicted offenders, and arrestees required to provide a DNA sample under this Article; persons required to register as sex offenders under G.S. 14‑208.7; unidentified persons or body parts; missing persons; relatives of missing persons; and anonymous DNA profiles used for forensic validation, forensic protocol development, or quality control purposes or establishment of a population statistics database for use by criminal justice agencies.
(8)	"State DNA Databank" means the repository of DNA samples collected under the provisions of this Article.
(9)	"Criminal Justice Agency" means an agency or institution of a federal, State, or local government, other than the office of the public defender, that performs as part of its principal function, activities relating to the apprehension, investigation, prosecution, adjudication, incarceration, supervision, or rehabilitation of criminal offenders.
(10)	"Qualifying Offense" means all of the following:
a.	Any felony offense as defined in the General Statutes or under common law.
b.	The following misdemeanor offenses: G.S. 14‑32.1 (assaults on handicapped persons), G.S. 14‑277.3 (stalking), and G.S. 14‑27.5A (sexual battery).
c.	Any offense requiring a person to register as a sex offender under G.S. 14‑208.7.
(11)	"Arrestee" 	means any person arrested for a felony offense.
(12)	"Conviction" includes a conviction by a jury or a court, a guilty plea, a plea of nolo contendere, or a finding of not guilty by reason of insanity or mental disease or defect. A finding of not guilty by reason of insanity or mental disease or defect shall be considered a conviction for purposes of this Article and the collection of a DNA sample.
SECTION 4.  G.S. 15A‑266.3 reads as rewritten:
"§ 15A‑266.3.  Establishment of State DNA database and databank.
 There is established under the administration of the SBI, the State DNA database and State DNA databank. The SBI shall provide DNA records to the FBI for the searching of DNA records nationwide and storage and maintenance by CODIS. The State DNA databank shall serve as the repository for DNA samples obtained pursuant to this Article. The State DNA database shall be compatible with the procedures specified by the FBI, including use of comparable test procedures, laboratory and computer equipment, supplies and computer platform and software. The State DNA database shall have the capability provided by computer software and procedures administered by the SBI to store and maintain DNA records related to all of the following:
(1)	Crime scene evidence and forensic casework.
(2)	Arrestees, offenders, and persons found not guilty by reason of insanity, who are required to provide a DNA sample under this Article.
(3)	Persons required to register as sex offenders under G.S. 14‑208.7.
(4)	Unidentified persons or body parts.
(5)	Missing persons.
(6)	Relatives of missing persons.
(7)	Anonymous DNA profiles used for forensic validation, forensic protocol development, or quality control purposes or establishment of a population statistics database, for use by criminal justice agencies."
SECTION 5 .  G.S. 15A‑266.4 reads as rewritten:
"§ 15A‑266.4.  Persons required to provide DNA sample; collection of DNA samples from persons convicted of, or arrested for, qualifying offenses.
(a)	Conviction or Arrest for Qualifying Offense. – A person convicted of, or arrested for, a qualifying offense shall provide a DNA sample in accordance with the provisions of this section. Unless a DNA sample has previously been obtained by lawful process and stored in the State DNA database, and that sample has not been expunged pursuant to G.S. 15A‑148, on or after December 1, 2003, a person who is convicted of any of the crimes listed in subsection (b) of this section or who is found not guilty of any of these crimes by reason of insanity and committed to a mental health facility in accordance with G.S. 15A‑1321 shall have a blood or cheek swab DNA sample drawn upon intake to jail, prison, or the mental health facility. In addition, every person convicted on or after December 1, 2003, of any of these crimes, but who is not sentenced to a term of confinement, shall provide a blood or cheek swab DNA sample as a condition of the sentence. A person who has been convicted and incarcerated as a result of a conviction of one or more of these crimes prior to December 1, 2003, or who was found not guilty of any of these crimes by reason of insanity and committed to a mental health facility in accordance with G.S. 15A‑1321 before December 1, 2003, shall have a blood or cheek swab DNA sample drawn before parole or release from the penal system or before release from the mental health facility.
(b)	Crimes Covered by Article. – Crimes covered by this Article include all of the following:
(1)	All felonies.
(2)	G.S. 14‑32.1 – Assaults on handicapped persons.
(3)	G.S. 14‑277.3A or former G.S. 14‑277.3 – Stalking.
(4)	G.S. 14‑27.5A – Sexual battery.
(c)	Person Convicted of Certain Crimes Must Provide DNA Sample. – A person who is convicted of any of the crimes listed in subsection (b) of this section shall have a DNA sample drawn upon intake to jail, prison, or the mental health facility. In addition, every person convicted of any of these crimes, but who is not sentenced to a term of confinement, shall provide a DNA sample as a condition of the sentence. A person who has been convicted and incarcerated as a result of a conviction of one or more of these crimes before October 1, 2010, shall have a DNA sample drawn before parole or release from the penal system or before release from the mental health facility. Crimes covered by this subsection include all of the following:
(1)	All felonies.
(2)	G.S. 14‑32.1
(3)	Assaults on handicapped persons.
(4)	G.S. 14‑277.3 Stalking.
(5)	G.S. 14‑27.5A Sexual battery.
(d)	Sex Offender Must Provide DNA Sample. – A person required to register as a sex offender under G.S. 14‑208.7 who has not already provided a DNA sample in accordance with this Article shall provide a DNA sample at a time and manner determined by the registration agency and consistent with SBI policies and procedures.
(e)	Arrestee Must Provide DNA Sample. – Effective January 1, 2011, an arrestee shall provide a DNA sample at the time of arrest or booking. An arrestee is any person arrested for a felony offense. The arresting authority shall be responsible for obtaining the required DNA sample from an arrestee required to provide a DNA sample in accordance with the policies and procedures established by the SBI.
(f)	Conviction of Qualifying Offense After October 1, 2010. – A person who is convicted for a qualifying offense on or after October 1, 2010, shall provide a DNA sample as follows:
(1)	A person who is sentenced to a period of incarceration shall provide a DNA sample upon intake to a prison, jail, mental health facility, or any other detention facility or institution. If the person is already confined at the time of sentencing, the person shall provide a DNA sample immediately after sentencing.
(2)	A person who is convicted for a qualifying offense shall provide a DNA sample as a condition for any sentence which disposition will not involve a period of incarceration. The agency supervising the person shall determine the time for collection of the DNA sample.
(g)	Interstate Transfer on Parole or Probation. – When the State accepts a person from another state under any interstate compact, or under any other reciprocal agreement with any county, State, or federal agency, or any other provision of law, whether or not the person is confined or released, the acceptance is conditional on the person providing a DNA sample if the person was convicted of an offense in any other jurisdiction that would be considered a qualifying offense as defined in G.S. 15A‑266.2 if committed in this State, or if the person was convicted of an equivalent offense in any other jurisdiction. The person shall provide the DNA sample in accordance with the policies and procedures of the custodial institution or supervising agency.
(h)	Applicability and Additional Sample. – The requirements of this Article are mandatory and apply regardless of whether a court advises a person that a DNA sample must be provided to the State DNA databank and database as a condition of probation or parole. A person who has been sentenced to death or life without the possibility of parole, or to any life or indeterminate term of incarceration is not exempt from the requirements of this Article. Any person subject to this Article, who has not provided a DNA sample for any reason, including the person's release prior to October 1, 2010, an oversight or error, or because of the person's transfer from another jurisdiction, shall give a DNA sample for inclusion in the State DNA database after being notified by the SBI of the requirement to provide a DNA sample. In the event that a person's DNA sample is not adequate for any reason, the person shall provide another DNA sample for analysis.
(i)	Time and Manner of Collecting DNA Sample. – The agency having control, custody, and supervision of a person subject to this Article may, in consultation with the SBI, promulgate policies and procedures specifying the time and manner of collection of the DNA samples as well as any other matter necessary to carry out its responsibilities under this Article. The SBI shall provide the materials and supplies necessary to collect a DNA sample from persons required to provide a DNA sample under this Article.
(j)	Contracting With Third Parties. – The agency or institution having custody or control or the agency providing supervision of any person subject to this Article, as appropriate, may contract with third parties to provide for the collection of the DNA samples described in this section.
(k)	Identification Information. – A fingerprint shall be provided by an arrestee or a person convicted of a qualifying offense for the purpose of verifying the identity of that person.
(l)	Samples Provided to the SBI. – DNA samples collected pursuant to this Article shall be forwarded to the SBI Laboratory in accordance with policies and procedures established by the SBI.
(m)	Limitation on Liability. – A person authorized to collect DNA samples shall not be civilly or criminally liable for the collection of a DNA sample pursuant to this Article if the person performs these duties in good faith and in a reasonable manner according to generally accepted medical or other professional practices.
(n)	Reasonable Use of Force. – Duly authorized law enforcement and corrections personnel may employ reasonable force in cases where an individual refuses to provide a DNA sample required under this Article, and no such employee shall be civilly or criminally liable for the use of such reasonable force.
(o)	Refusal to Provide DNA Sample. – Any person who is subject to the requirements of this Article, and who, after receiving notification of the requirement to provide a DNA sample, knowingly refuses to provide such DNA sample, shall be guilty of a Class A1 misdemeanor.
(p)	Mistake Does Not Invalidate a Database Match. – The detention, arrest, or conviction of a person based upon a database match or database information is not invalidated if it is determined that the sample was obtained or placed in the database by mistake."
SECTION 6.  G.S. 15A‑266.5 reads as rewritten:
"§ 15A‑266.5.  Analysis of DNA samples.
(a)	The tests to be performed on each DNA sample shall be to analyze and type the genetic markers contained in or derived from the DNA for the following:
	
(2)	For law enforcement identification purposes.
(2a)	To assist in the recovery or identification of human remains from mass disasters or for other humanitarian purposes, including identification of missing persons.
(3)	For research and administrative purposes, including:
a.	Development of a population database when personal identifying information is removed.
b.	To support identification research and protocol development of forensic DNA analysis methods.
c.	For quality control purposes.
	(b)	The DNA record of identification characteristics resulting from the DNA testing shall be stored and maintained by the SBI in the State DNA Database. The DNA sample itself will be stored and maintained by the SBI in the State DNA Databank.
(c)	All or part of the remainder of the DNA sample stored in the State DNA databank may be used only by criminal justice agencies for any of the following: (1)	For forensic validation studies and forensic protocol development purposes. 
(2)	To create a statistical database provided that no personally identifying information is included.
(3)	For retesting to validate or update the original analysis or for quality control purposes.
(d)	Searches of the State DNA database shall be performed in accordance with State and federal law and procedures.
(e)	The SBI may contract with third parties for the purposes of implementing this Article. Any other party contracting to carry out the functions of this Article shall be subject to the same restrictions and requirements of this Article, insofar as applicable, to the SBI, as well as any additional restrictions imposed by the SBI."
SECTION 7.  G.S. 15A‑266.6 reads as rewritten:
"§ 15A‑266.6.  Procedures.
			 The SBI shall adopt policies governing the procedures to be used in the submission, identification, analysis, and storage of DNA samples and typing results of DNA samples submitted under this Article. These procedures shall also require compliance with national quality assurance standards to ensure that the DNA records satisfy standards for acceptance of such records into the national DNA index." 
SECTION 8.  G.S. 15A‑266.7 reads as rewritten:
"§ 15A‑266.7.  DNA database exchange.

(a)	It shall be the duty of the SBI to receive DNA samples, to store, to analyze, classify, and file the DNA record of identification characteristic profiles of DNA samples submitted pursuant to this Article and to make such information available as provided in this section. The SBI may contract out DNA typing analysis to a qualified DNA laboratory that meets guidelines as established by the SBI. The DNA record of individuals in the State Database shall be made available to local, State, or federal law enforcement agencies, approved crime laboratories which serve these agencies, or the district attorney's office upon written or electronic request and in furtherance of an official investigation of a criminal offense. These records shall also be available in furtherance of an official investigation of a criminal offense upon receipt of a valid court order directing the SBI to release these results to appropriate parties not listed above, when the court order is signed by a superior court judge after a hearing. The SBI shall maintain a file of such court orders. (b)	The SBI shall adopt policies, procedures, and rules governing the methods of obtaining information from the State Database and procedures for verification of the identity and authority of the requester.
(c)	The SBI may create a separate population database comprised of DNA samples obtained under this Article, after all personal identification is removed. Nothing shall prohibit the SBI from sharing or disseminating population data with other law enforcement agencies, crime laboratories that serve them, or other third parties the SBI deems necessary to assist the SBI with statistical analysis of the SBI's population databases. The population database may be made available to and searched by other agencies participating in the CODIS system."
SECTION 9.  G.S. 15A‑266.8 reads as rewritten:
"§ 15A‑266.8.  Cancellation of authority to exchange DNA records.
			 The SBI may revoke the right of a forensic DNA laboratory within the State to exchange DNA identification records with federal, State, or local criminal justice agencies if the required quality control and privacy standards specified by the SBI for the State DNA Database are not met by these agencies."
SECTION 10.  G.S. 15A‑266.9 reads as rewritten:"§ 15A‑266.9.  Confidentiality of records.

(a)	All DNA records and samples submitted to the SBI pursuant to this Article shall be treated as confidential and shall not be disclosed to or shared with any person or agency except as provided in G.S. 15A‑266.8.
(b)	Only DNA records and samples that directly relate to the identification of individuals shall be collected and stored. These records and samples shall solely be used as a part of the criminal justice system for the purpose of facilitating the personal identification of the perpetrator of a criminal offense; provided that in appropriate circumstances such records may be used to identify potential victims of mass disasters or missing persons.
(c)	DNA records and DNA samples submitted to the SBI pursuant to this Article are not a public record as defined by G.S. 132‑1.
(d)	In the case of a criminal proceeding, requests to access a person's DNA record shall be in accordance with the rules for criminal discovery as defined in G.S. 15A‑902. The SBI shall not be required to provide the State DNA database for criminal discovery purposes.
(e)	DNA records and DNA samples submitted to the SBI may only be released for the following authorized purposes:
(1)	For law enforcement identification purposes, including the identification of human remains, to federal, State, or local criminal justice agencies;
(2)	For criminal defense and appeal purposes, to a defendant who shall have access to samples and analyses performed in connection with the case in which such defendant is charged or was convicted; and
(3)	If personally identifiable information is removed to local, State, or federal law enforcement agencies for forensic validation studies, forensic protocol development or quality control purposes, and for establishment and/or maintenance of a population statistics database.
(f)	In order to maintain the computer system security of the SBI DNA database program, the computer software and database structures used by the SBI to implement this Article are confidential."
SECTION 11.  G.S. 15A‑266.11 reads as rewritten:
"§ 15A‑266.11.  Unauthorized uses of DNA Databank; penalties.
(a)	Any person who, by virtue of employment, or official position, has possession of, or access to, individually identifiable DNA information contained in the State DNA Database or Databank and who willfully discloses it in any manner to any person or agency not entitled to receive it is guilty of a Class Al misdemeanor.
(b)	Any person who, without authorization, willfully obtains individually identifiable DNA information from the State DNA Database or Databank is guilty of a Class Al misdemeanor.
(c)	Any person who knowingly or intentionally tampers or attempts to tamper with any DNA sample, the result of any forensic analysis of a DNA sample collected pursuant to this Article, or the DNA sample collection container, shall be guilty of a Class A1 misdemeanor."
SECTION 12.  G.S. 15A‑266.12 reads as rewritten:
"§ 15A‑266.12.  Expungement of DNA record.
		
(a)	A person whose DNA record has been included in the State DNA database in accordance with this Article may request expungement on any of the following grounds:
(1)	The conviction on which the authority for including that person's DNA record was based has been reversed and the case dismissed.
(2)	The arrest on which the authority for including the person's DNA record or DNA profile was based has resulted in the charge being dismissed, and all charges arising from the same criminal episode for which DNA was taken resulted in dismissal (no DNA expungement where plea agreement entered into), or resulted in acquittal, or no charge was filed within the applicable statute of limitation period.
(b)	Upon receipt of a written request for expungement of a conviction, a certified copy of the final court order reversing and dismissing the conviction and any other information necessary to ascertain the validity of the request, the SBI shall expunge all DNA records and identifiable information in the database pertaining to the person and destroy the DNA sample from the person, unless the SBI determines that the person has otherwise become obligated to submit a DNA sample.
(c)	Upon receipt of a written request for expungement of an arrest, a certified copy of the court order that the charge has resulted in an acquittal or dismissal or other appropriate documentation demonstrating that the statute of limitation period has expired, and any other information necessary to ascertain the validity of the request, the SBI shall expunge all DNA records and identifiable information in the database pertaining to the person and destroy the DNA sample from the person, unless the SBI determines that the person has otherwise become obligated to submit a DNA sample.
(d)	The SBI is not required to destroy an item of physical evidence obtained from a sample if evidence relating to another person would thereby be destroyed.
(e)	Any identification, warrant, probable cause to arrest or arrest based upon a database match is not invalidated due to a failure to expunge or a delay in expunging records."
SECTION 13.  Article 13 of Chapter 15A of the General Statutes is amended by adding a new section to read:
"§ 15A‑266.13.  Administrative functions.
The SBI shall promulgate policies and procedures to implement the provisions of this Article and provide for liaison with the FBI regarding and other criminal justice agencies relating to the State's participation in CODIS program and the national DNA index system or in any DNA database designated by the SBI."
SECTION 14.  G.S. 7A‑304(a) is amended by adding a new subdivision to read:
"(a)	In every criminal case in the superior or district court, wherein the defendant is convicted, or enters a plea of guilty or nolo contendere, or when costs are assessed against the prosecuting witness, the following costs shall be assessed and collected, except that when the judgment imposes an active prison sentence, costs shall be assessed and collected only when the judgment specifically so provides, and that no costs may be assessed when a case is dismissed.
…
(9)	For support of the services of DNA collection and analysis, the sum of three dollars ($3.00) for all felonies to be remitted to the Department of Justice."
SECTION 15.  The provisions of this act shall be liberally construed and shall be held to be in addition to, and not in substitution for or a limitation of, the provisions of any other law.  If any provision or part of this act is held unconstitutional or otherwise invalid, the remainder of this act shall not be affected.
SECTION 16.  This act becomes effective October 1, 2010, except that the amendments made to G.S. 15A‑266.4(e) shall take effect January 1, 2011, provided that sufficient funding has been appropriated to the SBI to implement that provision.