HOUSE OF REPRESENTATIVES	H.B. NO.	1717
TWENTY-SEVENTH LEGISLATURE, 2014		H.D. 1
STATE OF HAWAII

A BILL FOR AN ACT

 

 

RELATING TO THE RETENTION OF BIOLOGICAL EVIDENCE.

 

 

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

 

     SECTION 1.  Section 844D-126, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§844D-126[]]  Retention of biological evidence.  (a)  All evidence in the custody or control of a police department, prosecuting attorney, laboratory, or court [that]:

     (1)  That is related to the investigation or prosecution of a case in which there has been a judgment of conviction for:

         (A)  Murder;

         (B)  Manslaughter;

         (C)  Kidnapping;

         (D)  Sexual assault in the first degree;

         (E)  Sexual assault in the second degree;

         (F)  Assault in the first degree; or

         (G)  An attempt or criminal conspiracy to commit one of the offenses listed above; and

     (2)  [that may contain] That contains biological evidence that could be used for DNA analysis that may reasonably:

         (A)  Establish the identity of the person who committed the offense for which the judgment of conviction was entered; or

         (B)  Exclude a person from the group of persons who could have committed the offense for which the judgment of conviction was entered,

shall be retained.

     (b)  Evidence shall be retained at least until the later occurring of either:

     (1)  The exhaustion of all appeals of the case to which the evidence is related; or

     (2)  The completion of any sentence, including any term of probation or parole, imposed on the defendant in the case to which the evidence relates.

     [(b)  The attorney general shall establish procedures and protocols, which shall be uniform throughout the State, for the collection and preservation of evidence retained pursuant to this section.]

     (c)  Notwithstanding subsections (a) and (b), an agency may dispose of evidence retained pursuant to the requirements of subsections (a) and (b) if the agency files a notification of proposed disposal of the evidence with the court, and either the defendant does not file an objection to the proposed disposal or, if the defendant does file an objection, the court allows the disposal of the evidence.  The filed notification shall be served upon the defendant against whom the judgment of conviction was filed and the defendant's attorney of record.  The notification shall include a description of the evidence and a statement that any objection by the defendant shall be filed in writing within ninety days of the date of service of the notification upon defendant.  The agency may dispose of the evidence if an objection to the proposed disposal is not filed within the ninety-day period.

     (d)  If a defendant files an objection to the proposed disposal of evidence, the court shall schedule a hearing on the objection.  If, after a hearing, the court determines by a preponderance of the evidence that:

     (1)  The identity of the defendant, as the perpetrator of the offense that resulted in the judgment of conviction, was at issue; and

     (2)  The evidence contains biological evidence that could be used for DNA analysis to reasonably establish the identity of the person who committed the offense for which the defendant was convicted, or exclude a person from the group of persons who could have committed the offense for which defendant was convicted,

the court may order the agency to retain the evidence for the period specified in subsection (b), or if appropriate, the court may enter an order authorizing the agency to dispose of the evidence after taking reasonable measures to preserve the biological evidence contained in the evidence.  If, after the hearing, the court is unable to make either of those conclusions, the court shall enter an order authorizing the agency to dispose of the evidence."

     SECTION 2.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 3.  This Act shall take effect on July 1, 2050.

 

 

Report Title:

Retention of Biological Evidence

 

Description:

Establishes specific offenses for which evidence shall be retained.  Allows law enforcement agencies to petition the court to dispose of biological evidence.  Requires the court to use a preponderance of evidence standard in determining whether to allow the law enforcement agency to dispose of the biological evidence.  Effective July 1, 2050.  (HB1717 HD1)

 

 

 

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