2 PROPOSED ADMINISTRATIVE RULES

 

SOAHR 2009-048 DEPARTMENT OF STATE POLICE

FORENSIC SCIENCE DIVISION DNA PROFILING SYSTEM

Filed with the Secretary of State on

 

These rules becomes effective immediately upon filing with the Secretary of State unless adopted under sections 33, 44, or 45a(6) of 1969 PA 306.  Rules adopted under these sections become effective 7 days after filing with the Secretary of State.

 

 

(By authority conferred on the department of state police by section 3 of 1990 PA 250, MCL 28.173Act No. 250 of the Public Acts of 1990, as amended in Act No.166 of 1994 being S28.173 of the Michigan Compiled Laws)

 

Draft 9/13/2010

 

R 28.5051, R 28.5052, R 28.5053, R 28.5054, R 28.5055, R 28.5056, R 28.5057, R 28.5058, and R

28.5059 are amended in the Michigan Administrative Code as follows:

 

R  28.5051   Definitions.

Rule 1. As used in these rules:

(a)     "CODIS" means the federal bureau of investigation's combined DNA Index System.

(b)     "Offender" means a person, including a juvenile, who is convicted, or

responsible for, of a violation of section 83, 91, 316, or 317, or a violation or an attempted violation of sections 349, 520b, 520c, 520d, 520e, and 520g of Act No. 328 of the Public Acts of 1931, as amended, being SS750.91, 750.316, 750.520b, 750.520c, 750.520d,750.520e, and 750.520g of the  Michigan Compiled Laws. an individual who is required to provide a DNA sample for a qualifying offense at arrest or upon conviction or a finding of responsibility under 1931 PA 328, MCL 750.520m and 1990 PA 250, MCL 28.176(1) or any other applicable law.

(c)     "Sample" means a source of cellular DNA that is collected in   a medically approved manner using the department of state police DNA collection kit. DNA collection kit provided by the department.

(d)    "Upon conviction" means within a reasonable time after conviction and sentencing or disposition, but before the offender's release or transfer from state or county custody, as applicable.

(e)     “At arrest” means within a reasonable time after arrest, typically during the booking process.

(f)    “Designated agency” means the law enforcement agency that is responsible for the sample collection and transmittal of the sample to the department.

(g)     “DNA” means deoxyribonucleic acid, the heredity material contained in nuclear cells.

(h)     “Department” means the Michigan department of state police.

 

 

(i)     “Qualifying offense” means those offenses for which an individual provides a sample for DNA testing as required by law at arrest, upon conviction, or upon a finding of responsibility.

(j)     “Profile” means the results of the DNA identification profiling of a sample, including a paper, electronic, or digital record.

 

R  28.5052   Applicability.

Rule 2. These rules apply to the collecting of samples from the following persons individuals:

  (a) Persons who are convicted on or after January 1, 1997, as specified  in section 91, 316, 317, 349, 520b, 520c, 520d, 520e, or 520g of Act No. 328 of the Public Acts of 1931, as amended, being (750.91, 750.316, 750.317, 750.349, 750.520b, 750.520c, 750.520d, 750.520e, or 750.520g of the Michigan Compiled Laws, or is responsible for as specified in Chapter XIIA of Act No.288 of the Public Acts of 1939, as amended, being SS712a.18k of the  Michigan Compiled Laws.

  (b) Persons who are released on after January 1, 1997, as specified in section 33 of Act No. 232 of the Public Acts of 1953, as amended, being

(791.233 of the Michigan Compiled Laws.

  (c) Persons as specified in section 7a of Act No. 150 of the Public Acts of 1974, being (803.307a of the Michigan Compiled Laws, or section 5a of Act No.73 of the Public Acts of 1988, being (803.225a of the Michigan Compiled Laws.

(a)    Offenders who are arrested for a qualifying offense under 1931 PA 328, MCL 750.520m(1)(a).

(b)     Offenders who are convicted of a qualifying offense under 1990 PA 250, MCL 28.176(1)(b).

(c)    Offenders who are prisoners and have not already provided a sample as required by 1953 PA 232, MCL 791.233d(1) that meets the requirements of these rules.

(d)    Juvenile offenders who are found responsible for a qualifying offense under 1990 PA 250, MCL 28.176(1)(a) and 1939 PA 288, MCL 712A.18k.

(e)    Juvenile offenders who are under the supervision of the state department or county juvenile agency under 1988 PA 73, MCL 803.225a and have not already provided a sample that meets the requirements of these rules.

(f)    Juvenile offenders who are public wards under 1974 PA 150, MCL 803.307a(1) and have not already provided a sample that meets the requirements of these rules.

 

R  28.5053   Responsibility for collecting samples.

Rule 3. (1) The department shall provide DNA collection kits to each designated agency.  Each designated agency shall contact the department to order DNA collection kits. Each agency shall designate a point of contact correspond with the department regarding matters concerning DNA collection.  Each agency shall notify the department of the designated point of contact’s name, address, and telephone number at which the department may direct correspondence to the point of contact regarding matters concerning DNA collection. If the designated point of contact has an e-mail address, the address shall also be provided to the department.

(2)    DNA collection kits shall be only used for collecting samples from offenders.  DNA collection kits shall not be used to collect evidentiary samples for submission in criminal cases.

(3)    The designated agency shall provide gloves to the individual performing the collection. The individual performing the collection shall wear gloves at all times while performing sample collection and packaging.

 

 

(4)   Each designated agency shall determine if a DNA sample is already on file for the offender through the criminal history record.  DNA samples shall not be collected when the criminal history record indicates a DNA sample has previously been obtained from the offender.

(5)   The following agencies, as applicable, are designated as the agencies that are responsible for ensuring the collection of samples from offenders If a determination is made that sample collection from the offender is required, then the following shall apply as to the designated agencies:

  (a) Upon the conviction of a person for violating or attempting to violate section 91, 316, 317, 349, 520b, 520c, 520d, 520e, or 520g of Act. No. 328 of the Public Acts of  1931, as amended, being SS750.91, 750.316, 750.317, 750.349, 750.520b, 750.520c, 750.520d, 750.520e, or 750.520g of the

Michigan Compiled Laws, or section 18k of Act No. 288 of the Public Acts of 1939, as amended, being (712A.18k of the Michigan Compiled Laws, the investigating law enforcement agency is  the designated agency and shall provide for the collection of a sample within 45 days of the conviction and before the person's transfer to the custody of the department of corrections.

  (b) If an offender has not previously had a sample collected and is serving a term of incarceration in a facility under the control of the county sheriff, then the investigating law enforcement agency is the designated agency and is responsible for ensuring the collection of the sample before the release of the offender in accordance with the provisions of section 33d of Act No. 232 of the Public Acts of 1953, as amended, being SS791.233d of the Michigan Compiled Laws.

  (c) If an offender has not previously had a sample collected and is transferred to a facility under the control of the department of corrections to serve a term of incarceration, then the department of corrections is the designated agency and is responsible for ensuring the collection of the sample within 45 days after receiving the offender in accordance with the provisions of section 520m of Act No. 328 of the Public Acts of 1931, as amended, being (750.520m of the Michigan Compiled Laws.

  (d) If a qualifying offender has not previously had a sample collected and an individual is serving a term of incarceration in a facility under the control of the department of corrections, then the department of corrections  is the designated agency and is responsible for ensuring the collection of the sample before the release of the offender in accordance with the provisions of section 33d of Act No. 232 of the Public Acts of 1953, as amended, being (791.233d of the Michigan Compiled Laws.

  (e) If an offender has not previously had a sample collected and is serving a sentence, but is not physically incarcerated, then the investigating law enforcement agency is the designated agency and is responsible for ensuring the collection of the sample before the end of the sentence in accordance with the provisions of section 33d of Act No. 232 of the Public Acts of 1953, as amended, being (791.233d of the Michigan Compiled Laws.

  (f) If an offender is a juvenile and committed as a state ward under section 7a of Act No. 150 of the Public Acts of 1974, as amended, being

(803.307a of the Michigan Compiled Laws, or section 5a of Act No. 73 of the Public Acts of 1988, as amended, being (803.225a of the Michigan Compiled Laws, then the family independence agency is the designated agency and is

responsible for ensuring the collection of the sample before the offender is discharged from wardship or released.

(a)     When applicable law requires sample collection upon arrest of an offender, the investigating law enforcement agency is the designated agency.  The collection of a sample from the offender and transmittal of the sample to the department shall be completed within 30 days of the arrest.

(b)     When applicable law requires sample collection upon conviction or a finding of responsibility, unless otherwise ordered by the court, the investigating law enforcement agency is the designated agency. If the designated investigating law enforcement agency does not collect a sample from the offender within 15 days of conviction or finding of responsibility, the county

 

 

sheriff is then the designated agency for collection unless otherwise ordered by the court.  If a sample has not already been collected, collection of a sample from the offender and transmittal of the sample to the department shall occur before any transfer or release of the offender, whatever the terms of incarceration.  If the offender will be incarcerated for more than 30 days, the collection of a sample from the offender and transmittal of the sample to the department shall be completed within 30 days of the conviction or finding of responsibility.

(c)     When applicable law requires sample collection before release from serving a term of incarceration in a facility under the control of the county sheriff, the county sheriff is the designated agency. If a sample has not already been collected, collection of a sample from the offender and transmittal of the sample to the department shall occur before any transfer or release of the offender, whatever the term of incarceration.  If the offender will be incarcerated for more than 90 days, the collection of a sample from the offender and transmittal of the sample to the department shall be completed 90 days prior to the offender’s release.

(d)     When applicable law requires sample collection from an offender and the offender is transferred into a facility under the control of the Michigan department of corrections to serve a term of incarceration, the Michigan department of corrections is the designated agency. If the sample has not already been collected, collection of a sample from the offender and transmittal of the sample to the department shall occur before release of the offender, whatever the term of incarceration.  If the offender will be incarcerated for more than 90 days, the collection of a sample from the offender and transmittal of the sample to the department shall be completed within 90 days of receipt of the offender into the facility.

(e)     When applicable law requires sample collection from an offender and the offender is serving a term of incarceration in a facility under the control of the Michigan department of corrections, the Michigan department of corrections is the designated agency. If a sample has not already been collected, collection of a sample from the offender and transmittal of the sample to the department shall occur before release of the offender, whatever the term of incarceration. If the offender will be incarcerated for more than 1 year, the collection of a sample from the offender and transmittal of the sample to the department shall be completed a minimum of 1 year prior to the offender’s release.

(f)    When applicable law requires sample collection from an offender and the offender is placed under the supervision of a state department or county juvenile agency or is declared a public ward, the investigating law enforcement agency is the designated agency. Collection of a sample from the offender and transmittal of the sample to the department shall occur before any transfer or discharge from wardship, whatever the term of supervision.  If the offender will be under supervision for more than 30 days, the collection of a sample from the offender and transmittal of the sample to the department shall be completed within 30 days of the offender being placed under supervision.

 

R 28.5054   Procedures for sample Ccollection procedures.

Rule 4. (1) An offender shall be positively identified by the agency

responsible for collecting the samples designated agency or its designee before the samples are taken. The state identification number associated with the offender, if there is an assigned state identification number, shall be used for this purpose and recorded in the specified area on the DNA collection card.

(2)   When an After the offender is positively identified, the designated agency shall collect samples shall be taken from the offender in a medically approved manner by, or under  the direction of, a physician, registered nurse, licensed practical nurse, or duly licensed clinical laboratory technician

 

 

associated with the county or state agency that has custody of the offender, as appropriate. according to the collection instructions included in the DNA collection kit.  The sample collection shall be performed by the designated agency or its designee; however, the designee shall not be the offender.  The designated agency shall provide gloves to the individual performing the collection. The individual performing the collection shall wear gloves at all times while performing sample collection and packaging.

(3)   Only the sample DNA collection kit provided by the department of state police shall be used to take

collect samples.

(4)   Before or immediately after the taking of the samples, the Michigan

state police The DNA collection card request for DNA investigative support   database entry form shall be completed by the designated agency responsible for collecting the samples prior to beginning sample collection. and aAll relevant information requested on the form DNA collection card shall be provided.  The form DNA collection card shall bear the a fingerprint impressions of the offender's right thumbs in the spaces indicated on the form DNA collection card.

the samples collected shall comply be in compliance with the printed instructions

included with each sample collection kit collection instructions included in the DNA collection kit. Within 72 hours of sample collection, samples the DNA collection kit shall be transmitted to the department of state police by hand delivery, U.S. Mail, or certified carrier.   in the manner prescribed in the instructions.

 

R 28.5055  Profile record storage and access.

Rule 5. (1) The national DNA database system "CODIS" shall be used to file, catalog, retrieve, and compare DNA profiles.

(2) Access and use of the CODIS system shall be in accordance to the

CODIS administrative rules with federal law, memorandum of understanding with the federal bureau of investigation for participation in CODIS, all applicable CODIS rules, polices or procedures, and any licensing agreements established by the United States government.

 

R  28.5056   Privacy protection.

Rule 6. The results of the genetic marker grouping analysis DNA profiling shall be disclosed only as follows:  provided in 1990 PA 250, MCL 28.176(2).

  (a) To criminal justice agencies for law enforcement identification purposes.

  (b) To law enforcement agencies for the investigation of missing persons.

  (c) As otherwise allowed by law.

 

R  28.5057   Use of statistical information. Authorized use.

Rule 7. The department of state police may shall only use samples and/or test results for the purposes provided in 1990 PA 250, MCL 28.175a. for a population statistics database or for other research or quality control purposes if personally identifying information is removed.

 

R  28.5058  Expungement of records. Disposal of samples and profiles.

Rule 8. A sample or profile shall not be disposed of if the department determines the individual has otherwise become obligated to submit a sample or if the disposal of the sample would destroy

 

 

sample or data relating to another individual who would otherwise be retained. If the sample is eligible for disposal, the sample shall be disposed of in the following instances:

(a)   If the disposition upon which a sample collection was based has been reversed and no other grounds exist for sample collection, the record of the sample shall be removed from the database when so Disposal is ordered by a court of proper jurisdiction in accordance with 1990 PA 250, MCL 28.176(10).

(b)     The department receives a written request for disposal from the investigating police agency or prosecutor in accordance with 1990 PA 250, MCL 28.176(11).

(c)     The department receives a written request for disposal and a certified copy of a final court order in accordance with 1990 PA 250, MCL 28.176(11)(b).

 

R 28.5059  Effect of noncompliance with rules.

Rule 9. The results of genetic marker grouping analyses and access to the state genetic marker database information may be denied to any agency that fails to comply with these rules. The uploading of DNA profiles into the state DNA database may be denied if the designated agency fails to comply with these rules.