Wash. Rev. Code § 43.43.754

Current through 2024

Section 43.43.754 - DNA identification system-Biological samples-Collection, use, testing-Scope and application of section

(1) A biological sample must be collected for purposes of DNA identification analysis from:

(a) Every adult or juvenile individual convicted of a felony, or adjudicated of an offense which if committed by an adult would be a felony, or any of the following crimes (or equivalent juvenile offenses):

(i) Assault in the fourth degree where domestic violence as defined in RCW 9.94A.030 was pleaded and proven (RCW 9A.36.041, 9.94A.030);

(ii) Assault in the fourth degree with sexual motivation (RCW 9A.36.041, 9.94A.835);

(iii) Communication with a minor for immoral purposes (RCW 9.68A.090);

(iv) Custodial sexual misconduct in the second degree (RCW 9A.44.170);

(v) Failure to register (chapter 9A.44 RCW);

(vi) Harassment (RCW 9A.46.020);

(vii) Patronizing a prostitute (RCW 9A.88.110);

(viii) Sexual misconduct with a minor in the second degree (RCW 9A.44.096);

(ix) Stalking (RCW 9A.46.110);

(x) Indecent exposure (RCW 9A.88.010);

(xi) Violation of a sexual assault protection order granted under chapter 7.105 RCW or former chapter 7.90 RCW; and

(b) Every adult or juvenile individual who is required to register under RCW 9A.44.130.

(2)

(a) A municipal jurisdiction may also submit any biological sample to the laboratory services bureau of the Washington state patrol for purposes of DNA identification analysis when:

(i) The sample was collected from a defendant upon conviction for a municipal offense where the underlying ordinance does not adopt the relevant state statute by reference but the offense is otherwise equivalent to an offense in subsection (1)(a) of this section;

(ii) The equivalent offense in subsection (1)(a) of this section was an offense for which collection of a biological sample was required under this section at the time of the conviction; and

(iii) The sample was collected on or after June 12, 2008, and before January 1, 2020.

(b) When submitting a biological sample under this subsection, the municipal jurisdiction must include a signed affidavit from the municipal prosecuting authority of the jurisdiction in which the conviction occurred specifying the state crime to which the municipal offense is equivalent.

(3) Law enforcement may submit to the forensic laboratory services bureau of the Washington state patrol, for purposes of DNA identification analysis, any lawfully obtained biological sample within its control from a deceased offender who was previously convicted of an offense under subsection (1)(a) of this section, regardless of the date of conviction.

(4) If the Washington state patrol crime laboratory already has a DNA sample from an individual for a qualifying offense, a subsequent submission is not required to be submitted.

(5) Biological samples shall be collected in the following manner:

(a)

(i)

(A) For persons convicted of any offense listed in subsection (1)(a) of this section or adjudicated guilty of an equivalent juvenile offense, who do not serve a term of confinement in a department of corrections facility or a department of children, youth, and families facility, and are serving a term of confinement in a city or county jail facility, the city or county jail facility shall be responsible for obtaining the biological samples prior to the person's release from confinement.

(B) Each city and county jail facility must adopt and implement a policy that collects biological samples from persons convicted of an offense listed in subsection (1)(a) of this section as soon as practicable during the person's term of confinement.

(ii) If the biological sample is not collected prior to the person's release from confinement, the responsible city or county jail facility shall notify the sentencing court within three business days of the person's release that it has released the person without collecting the person's biological sample, and provide the reason for releasing the person without collecting a biological sample. Within 10 days of receiving notice of the person's release, the sentencing court shall schedule a compliance hearing. The jail shall serve or cause to be served notice to the person of the compliance hearing and shall file proof of service with the sentencing court. A representative of the jail shall attend the compliance hearing and obtain the person's biological sample at the hearing. The court may, in its discretion, require the jail to pay attorneys' fees and court costs associated with scheduling and attending the compliance hearing.

(b) The local police department or sheriff's office shall be responsible for obtaining the biological samples for:

(i) Persons convicted of any offense listed in subsection (1)(a) of this section or adjudicated guilty of an equivalent juvenile offense, who do not serve a term of confinement in a department of corrections facility, department of children, youth, and families facility, or a city or county jail facility; and

(ii) Persons who are required to register under RCW 9A.44.130.

(c)

(i) For persons convicted of any offense listed in subsection (1)(a) of this section or adjudicated guilty of an equivalent juvenile offense, who are serving or who are to serve a term of confinement in a department of corrections facility or a department of children, youth, and families facility, the facility holding the person shall be responsible for obtaining the biological samples as part of the intake process. If the facility did not collect the biological sample during the intake process, then the facility shall collect the biological sample as soon as is practicable prior to the person's release from confinement. For those persons incarcerated before June 12, 2008, who have not yet had a biological sample collected, priority shall be given to those persons who will be released the soonest.

(ii) If the biological sample is not collected prior to the person's release from confinement, the responsible department of corrections facility or department of children, youth, and families facility shall notify the sentencing court within three business days of the person's release that it has released the person without collecting the person's biological sample. Within 10 days of receiving notice of the person's release, the sentencing court shall schedule a compliance hearing. The responsible department of corrections facility or department of children, youth, and families facility shall serve or cause to be served notice to the person of the compliance hearing and shall file proof of service with the sentencing court. A representative of the responsible department of corrections facility or department of children, youth, and families facility shall attend the compliance hearing and obtain the person's biological sample at the hearing. The court may, in its discretion, require the responsible department of corrections facility or department of children, youth, and families facility to pay attorneys' fees and court costs associated with scheduling and attending the compliance hearing.

(d) For persons convicted of any offense listed in subsection (1)(a) of this section or adjudicated guilty of an equivalent juvenile offense, who will not serve a term of confinement, the court shall: Order the person to be administratively booked at a city or county jail facility for the sole purpose of providing a biological sample; or if the local police department or sheriff's office has a protocol for collecting the biological sample in the courtroom, order the person to immediately provide the biological sample to the local police department or sheriff's office before leaving the presence of the court. The court must further inform the person that refusal to provide a biological sample is a gross misdemeanor under this section.

(e) For persons convicted of any offense listed in subsection (1)(a) of this section or adjudicated guilty of an equivalent juvenile offense, the court shall create and implement a biological sample collection protocol. The court shall order the biological samples at the time of sentencing. The court shall inform the person that refusal to provide a biological sample is a gross misdemeanor under this section. If the biological sample is not collected at the time of sentencing, then the biological sample shall be collected pursuant to (a) through (d) of this subsection (5), and the court shall schedule a compliance hearing within 10 days of the sentencing to ensure that the biological sample has been collected.

(6) Any biological sample taken pursuant to RCW 43.43.752 through 43.43.758 may be retained by the forensic laboratory services bureau, and shall be used solely for the purpose of providing DNA or other tests for identification analysis and prosecution of a criminal offense or for the identification of human remains or missing persons. Nothing in this section prohibits the submission of results derived from the biological samples to the federal bureau of investigation combined DNA index system.

(7) The forensic laboratory services bureau of the Washington state patrol is responsible for testing performed on all biological samples that are collected under this section, to the extent allowed by funding available for this purpose. Known duplicate samples may be excluded from testing unless testing is deemed necessary or advisable by the director.

(8) This section applies to:

(a) All adults and juveniles to whom this section applied prior to June 12, 2008;

(b) All adults and juveniles to whom this section did not apply prior to June 12, 2008, who:

(i) Are convicted on or after June 12, 2008, of an offense listed in subsection (1)(a) of this section on the date of conviction; or

(ii) Were convicted prior to June 12, 2008, of an offense listed in subsection (1)(a) of this section and are still incarcerated on or after June 12, 2008;

(c) All adults and juveniles who are required to register under RCW 9A.44.130 on or after June 12, 2008, whether convicted before, on, or after June 12, 2008; and

(d) All samples submitted under subsections (2) and (3) of this section.

(9) This section creates no rights in a third person. No cause of action may be brought based upon the noncollection or nonanalysis or the delayed collection or analysis of a biological sample authorized to be taken under RCW 43.43.752 through 43.43.758.

(10) 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, or if the conviction or juvenile adjudication that resulted in the collection of the biological sample was subsequently vacated or otherwise altered in any future proceeding including but not limited to posttrial or postfact-finding motions, appeals, or collateral attacks. No cause of action may be brought against the state based upon the analysis of a biological sample authorized to be taken pursuant to a municipal ordinance if the conviction or adjudication that resulted in the collection of the biological sample was subsequently vacated or otherwise altered in any future proceeding including, but not limited to, posttrial or postfact-finding motions, appeals, or collateral attacks.

(11) A person commits the crime of refusal to provide DNA if the person willfully refuses to comply with a legal request for a DNA sample as required under this section. The refusal to provide DNA is a gross misdemeanor.

RCW 43.43.754

Amended by 2023 c 197,§ 7, eff. 7/23/2023.

Amended by 2021 c 215,§ 149, eff. 7/1/2022.

2020 c 26 § 7; 2019 c 443 § 3; 2017 c 272 § 4; 2015 c 261 § 10; 2008 c 97 § 2; 2002 c 289 § 2; 1999 c 329 § 2; 1994 c 271 § 402; 1990 c 230 § 3; 1989 c 350 § 4.

Effective date- 2022 c 268; 2021 c 215: See note following RCW 7.105.900.

Intent- 2020 c 26: See note following RCW 63.21.090.

Short title- 2019 c 443: "This act may be known and cited as Jennifer and Michella's law." [2019 c 443 s 1.]

Findings- 2019 c 443: "The legislature finds that the state of Washington has for decades routinely required collection of DNA biological samples from certain convicted offenders and persons required to register as sex and kidnapping offenders. The resulting DNA data has proven to be an invaluable component of forensic evidence analysis. Not only have DNA matches focused law enforcement efforts and resources on productive leads, assisted in the expeditious conviction of guilty persons, and provided identification of recidivist and cold case offenders, DNA analysis has also played a crucial role in absolving wrongly suspected and convicted persons and in providing resolution to those who have tragically suffered unimaginable harm.

In an effort to solve cold cases and unsolved crimes, to provide closure to victims and their family members, and to support efforts to exonerate the wrongly accused or convicted, the legislature finds that procedural improvements and measured expansions to the collection and analysis of lawfully obtained DNA biological samples are both appropriate and necessary." [2019 c 443 s 2.]

Severability-Effective date-2002 c 289: See notes following RCW 43.43.753.

Findings-1999 c 329: "The legislature finds it necessary to expand the current pool of convicted offenders who must have a blood sample drawn for purposes of DNA identification analysis. The legislature further finds that there is a high rate of recidivism among certain types of violent and sex offenders and that drawing blood is minimally intrusive. Creating an expanded DNA data bank bears a rational relationship to the public's interest in enabling law enforcement to better identify convicted violent and sex offenders who are involved in unsolved crimes, who escape to reoffend, and who reoffend after release." [ 1999 c 329 s 1.]

Severability-1999 c 329: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [ 1999 c 329 s 3.]

Finding-1994 c 271: "The legislature finds that DNA identification analysis is an accurate and useful law enforcement tool for identifying and prosecuting sexual and violent offenders. The legislature further finds no compelling reason to exclude juvenile sexual and juvenile violent offenders from DNA identification analysis." [ 1994 c 271 s 401.]

Purpose-Severability-1994 c 271: See notes following RCW 9A.28.020.

Finding-Funding limitations-1989 c 350: See notes following RCW 43.43.752.