CHAPTER 249

FORMERLY

HOUSE BILL NO. 318

AS AMENDED BY SENATE AMENDMENT NO. 1 AS AMENDED BY
SENATE AMENDMENT NO. 1 TO SENATE AMENDMENT NO. 1 AND
SENATE AMENDMENT NO. 2

AN ACT TO AMEND CHAPTER 47, TITLE 29 OF THE DELAWARE CODE RELATING TO DNA ANALYSIS AND DATA BANK, AND TO AMEND CHAPTER 35, TITLE 11 OF THE DELAWARE CODE TO PROVIDE DNA PROFILE ADMISSIBILITY.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (two-thirds of all members elected to each House thereof concurring therein);

Section 1. Amend Chapter 47, Title 29, Delaware Code by adding a new section to read as follows:

"Section 4713. DNA Analysis and Data Bank.

(a) In any criminal proceeding, DNA (deoxyribonucleic acid) testing shall be deemed to be a reliable scientific technique, and the evidence of a DNA profile comparison shall be admitted to prove or disprove the identity of any person. This section shall not otherwise limit the introduction of any relevant evidence bearing upon any question at issue before the court. The court shall, regardless of the results of the DNA analysis, if any, consider such other relevant evidence of the identity of the person as shall be admissible in evidence.

(b) Any person convicted on or after the effective date of this section of any offense or attempted offense defined in Subchapter II, Subpart D or Subchapter V of Chapter 5, Title 11 of the Delaware Code or who Is in the custody of the Department of Correction after the effective date of this section as a result of a conviction on one of the above offenses shall have a sample of blood taken by the Department of Correction for DNA (deoxyribonucleic acid) law enforcement identification purposes and inclusion in law enforcement identification databases. Any person convicted on or after the date of this Act who Is not sentenced to a term of confinement shall provide a blood sample as a condition of such sentence at a time and place specified by the sentencing court.

(a) The samples shall be obtained in a medically approved manner by a physician, registered nurse, licensed practical nurse, phlebotomist, medical technologist, or other qualified medical personnel approved by the Chief Medical Examiner, and packaged and submitted in containers provided by the Chief Medical Examiner, Forensic Sciences Laboratory in accordance with administrative regulations promulgated by the Chief Medical Examiner. No civil liability shall attach to any person authorized to draw blood as provided by this section as a result of the act of drawing blood from any person, provided the blood was drawn according to generally accepted medical procedures.

(a) Any person who tampers or attempts to tamper with any sample of blood or the container collected pursuant to subsection (b) or (c) without lawful authority shall be guilty of a Class D felony.

(b) A centralized database of DNA (deoxyribonucleic acid) identification records for convicted criminals shall be established in the Office of the Chief Medical Examiner, Forensic Science Laboratory. The established system shall be compatible with the procedures set forth in a national DNA identification index to ensure data exchange on a national level.

(a) The purpose of the centralized DNA database Is to assist federal, state, and local criminal justice and law enforcement agencies within and outside the State In the identification, detection, or exclusion of individuals who are subjects of the investigation or prosecution of sex-related crimes, violent crimes, or other crimes and the Identification of missing and unidentified persons.

(g) The Chief Medical Examiner and Forensic Sciences Laboratory shall receive, analyze, and classify samples in compliance with subsections (b) and (c) of this section, and shall record the DNA results in a centralized database for identification and statistical purposes. A report of the analysis certified by the Chief Medical Examiner shall be admissible in any court as evidence of the facts therein stated. Except as specifically provided in this section, the results of the analysis shall be securely stored and shall remain confidential.

(a) Records produced from the samples shall be used only for law enforcement purposes and shall be exempt from the provisions of the Freedom of Information Act.

(a) A person whose DNA profile has been included in the Data Bank pursuant to this section may petition Superior Court for expungement on the grounds that the conviction on which the authority for including the DNA profile was based has been reversed or the case dismissed. The Office of Chief Medical Examiner, Forensic Science Laboratory shall expunge all identifiable information in the Data Bank pertaining to the person and destroy all samples from the person upon receipt of a certified court order.

(j) The Chief Medical Examiner and Forensic Sciences Laboratory shall promulgate administrative regulations necessary to carry out the provisions of the DNA database identification system to include procedures for collection of samples of blood and the database system usage and integrity.

(a) Upon completion of the analysis required by this section, the Office of the Chief Medical Examiner, Forensic Science Laboratory shall forward to the State Bureau of Identification the name and other identifying information required by the State Bureau of Identification of each individual for whom a DNA identification record is developed. Upon receipt of such information the State Bureau of Identification shall make a notation of the existence of such DNA identification record in the criminal history record information file for such individual maintained pursuant to 11 Del.. C, Chapter 85. Such information shall be available to all requesting criminal justice agencies in the same manner and under the same conditions as all other criminal record information maintained by the State Bureau of Identification.

(1) Any person who disseminates, receives, or otherwise uses or

attempts to use information in the database, knowing that such dissemination, receipt, or use is for a purpose other than authorized by law, shall be guilty of a Class A misdemeanor."

Section 2. Amend Chapter 35, Title 11, Delaware Code by adding a new section to read as follows:

"Section 3515. Admissibility of DNA Profiles.

(a) Definitions. - In this section the following words have the meanings Indicated.

(1) 'Deoxyribonucleic acid (DNA)' means the molecules in all cellular forms that contain genetic information in a patterned chemical structure of each individual.

(2) 'DNA profile' means an analysis that utilizes the restriction fragment length polymorphism analysis of DNA resulting in the identification of an individual's patterned chemical structure of genetic information.

(b) Purposes. - In any criminal proceeding, the evidence of a DNA profile is admissible to prove or disprove the identity of any person, if the party seeking to introduce the evidence of a DNA profile:

(1) Notifies In writing the other party or parties by mail at least 45 days before any criminal proceeding; and

(2) Provides, if requested in writing, the other party or parties at least 30 days before any criminal proceeding with:

(i) Duplicates of the actual autoradiographs generated;

(ii) The laboratory protocols and procedures;

(iii) The identification of each probe utilized;

(i) A statement describing the methodology of measuring fragment size and match criteria; and

(i) A statement setting forth the allele frequency and genotype data for the appropriate database utilized.

(c) Prerequisites. — If a party is unable to provide the information required under subsection (b) of this section at least 30 days prior to the criminal proceeding, the •court may grant a continuance to permit such timely disclosures as justice may require."

Approved June 16, 1994.