Enrolled SB 110: Relating to post-conviction DNA testing, to the preservation of certain evidence, and to the DNA identification registration system; relating to post-conviction relief procedures; relating to representation by the public defender; amending Rule 35.1, Alaska Rules of Criminal Procedure; and providing for an effective date.
00Enrolled SB 110 01 Relating to post-conviction DNA testing, to the preservation of certain evidence, and to the 02 DNA identification registration system; relating to post-conviction relief procedures; relating 03 to representation by the public defender; amending Rule 35.1, Alaska Rules of Criminal 04 Procedure; and providing for an effective date. 05 _______________ 06 * Section 1. AS 12.36.020(a) is amended to read: 07 (a) A law enforcement agency may 08 (1) not return property in its custody to the owner or the agent of the 09 owner, except as provided in AS 12.36.200, if 10 (A) the property is in custody in connection with a children's 11 court proceeding, a criminal proceeding, or an official investigation of a crime; 12 or 13 (B) the property in custody is subject to forfeiture under the 14 laws of the
01 (i) state; or 02 (ii) United States, and the United States has commenced 03 forfeiture proceedings against the property or has requested the transfer 04 of the property for the commencement of forfeiture proceedings; and 05 (2) with the approval of the court, transfer the property to another state 06 or federal law enforcement agency for forfeiture proceedings by that agency; the court 07 having jurisdiction shall grant the approval under this paragraph if the property 08 (A) will be retained within the jurisdiction of the court by the 09 agency to which the property is being transferred; or 10 (B) is 11 (i) not needed as evidence; or 12 (ii) needed as evidence, and the property is fungible or 13 the property's evidentiary value can otherwise be preserved without 14 retaining the property within the jurisdiction of the court. 15 * Sec. 2. AS 12.36.090 is amended to read: 16 Sec. 12.36.090. Definitions. In AS 12.36.010 - 12.36.090 [THIS CHAPTER], 17 (1) "final disposition of a case" means the time when all appeals have 18 been exhausted or the time when all appeals that could have been taken has expired; 19 (2) "law enforcement agency" means a public agency that performs as 20 one of its principal functions an activity relating to crime prevention, control, or 21 reduction or relating to the enforcement of the criminal law; "law enforcement 22 agency" does not include a court. 23 * Sec. 3. AS 12.36 is amended by adding a new section to read: 24 Article 2. Preservation of Evidence. 25 Sec. 12.36.200. Preservation of evidence. (a) Notwithstanding AS 12.36.010 - 26 12.36.090, the Department of Law, the Department of Public Safety, the Alaska Court 27 System, or a municipal law enforcement agency shall preserve 28 (1) all evidence that is obtained in relation to an investigation or 29 prosecution of a crime under AS 11.41.100 - 11.41.130, 11.41.410, or 11.41.434 for 30 the period of time that the crime remains unsolved or 50 years, whichever ends first; 31 (2) biological evidence in an amount and manner that is sufficient to
01 develop a DNA profile from any material contained in or included on the evidence 02 that was obtained in relation to the prosecution of a person convicted of, or 03 adjudicated a delinquent for, a crime under AS 11.41.100 - 11.41.130, a person 04 convicted of a crime after being indicted under AS 11.41.410 or 11.41.434 while the 05 person remains a prisoner in the custody of the Department of Corrections or subject 06 to registration as a sex offender, or a person adjudicated a delinquent for a crime after 07 the filing of a petition alleging a violation of AS 11.41.410 or 11.41.434 while the 08 person remains committed to a juvenile facility or subject to registration as a sex 09 offender. 10 (b) Under (a) of this section, an agency is not required to preserve physical 11 evidence of a crime that is of a size, bulk, quantity, or physical character that renders 12 preservation impracticable. When preservation of evidence of a crime is impracticable, 13 the agency shall, before returning or disposing of the evidence, remove and preserve 14 portions of the material likely to contain relevant evidence related to the crime in a 15 quantity sufficient to permit future DNA testing. In making decisions under this 16 section, an agency shall follow written policies on evidence retention. 17 (c) Upon written request of a person convicted of a crime and a prisoner, 18 adjudicated delinquent for a crime and committed, or subject to registration as a sex 19 offender, an agency shall prepare or provide an inventory of biological evidence that 20 has been preserved under (a)(2) of this section in connection with the person's criminal 21 case. 22 (d) An agency required to preserve biological evidence under (a) of this 23 section may destroy biological evidence before the expiration of the time period in 24 (a)(2) of this section if 25 (1) the agency is not required to maintain the evidence under another 26 provision of state or federal law; 27 (2) the agency sends, by certified mail with proof of delivery, notice of 28 its intent to destroy evidence to 29 (A) each person who remains a prisoner or committed or 30 subject to registration as a sex offender for the crime for which the evidence 31 was preserved under (a)(2) of this section;
01 (B) the attorneys of record, if known, for each person listed in 02 (A) of this paragraph; 03 (C) the Public Defender Agency; 04 (D) the district attorney responsible for prosecuting the crime; 05 and 06 (3) no person who is notified under (2) of this subsection, within 120 07 days after receiving the notice, 08 (A) files a motion for testing of the evidence; or 09 (B) submits a written request for continued preservation of the 10 evidence. 11 (e) Upon receipt of a request for continued preservation of biological evidence 12 under (d)(3)(B) of this section, an agency may petition the court for permission to 13 destroy the evidence. The court may grant the petition if the court finds that the 14 request is without merit or that the evidence has no significant value for biological 15 material. 16 (f) When an agency is required to produce biological evidence required to be 17 preserved under this section and the agency is unable to locate the evidence, the chief 18 evidence custodian of that agency shall submit an affidavit, executed under penalty of 19 perjury, describing the evidence that could not be located and detailing the efforts 20 taken to locate the evidence. 21 (g) If a court finds that evidence was destroyed in violation of the provisions 22 of this section, the court may order remedies the court determines to be appropriate. 23 (h) A person may not bring a civil action for damages against the state or a 24 political subdivision of the state, their officers, agents, or employees, or a law 25 enforcement agency, its officers, or employees for any unintentional failure to comply 26 with the provisions of this section. 27 (i) In this section, 28 (1) "agency" means the Department of Law, the Department of Public 29 Safety, the Alaska Court System, or a municipal law enforcement agency; 30 (2) "biological evidence" means 31 (A) the contents of a sexual assault forensic examination kit;
01 (B) semen, blood, hair, saliva, skin tissue, fingernail scrapings, 02 bone, bodily fluids, or other identifiable human bodily material collected as 03 part of a criminal investigation; 04 (C) a slide, swab, or test tube containing material described in 05 (B) of this paragraph; and 06 (D) swabs or cuttings from items that contain material 07 described in (B) of this section; 08 (3) "DNA" means deoxyribonucleic acid; 09 (4) "prisoner" has the meaning given in AS 33.30.901. 10 * Sec. 4. AS 12.72.010 is amended to read: 11 Sec. 12.72.010. Scope of post-conviction relief. A person who has been 12 convicted of, or sentenced for, a crime may institute a proceeding for post-conviction 13 relief if the person claims 14 (1) that the conviction or the sentence was in violation of the 15 Constitution of the United States or the constitution or laws of this state; 16 (2) that the court was without jurisdiction to impose sentence; 17 (3) that a prior conviction has been set aside and the prior conviction 18 was used as a statutorily required enhancement of the sentence imposed; 19 (4) that there exists evidence of material facts, not previously 20 presented and heard by the court, that requires vacation of the conviction or sentence 21 in the interest of justice; if the person seeks post-conviction DNA testing to support 22 a claim under this paragraph, the person's exclusive method for obtaining that 23 testing is an application under AS 12.73; 24 (5) that the person's sentence has expired, or the person's probation, 25 parole, or conditional release has been unlawfully revoked, or the person is otherwise 26 unlawfully held in custody or other restraint; 27 (6) that the conviction or sentence is otherwise subject to collateral 28 attack upon any ground or alleged error previously available under the common law, 29 statutory law, or other writ, motion, petition, proceeding, or remedy; 30 (7) that 31 (A) there has been a significant change in law, whether
01 substantive or procedural, applied in the process leading to the person's 02 conviction or sentence; 03 (B) the change in the law was not reasonably foreseeable by a 04 judge or a competent attorney; 05 (C) it is appropriate to retroactively apply the change in law 06 because the change requires observance of procedures without which the 07 likelihood of an accurate conviction is seriously diminished; and 08 (D) the failure to retroactively apply the change in law would 09 result in a fundamental miscarriage of justice, which is established by 10 demonstrating that, had the changed law been in effect at the time of the 11 applicant's trial, a reasonable trier of fact would have a reasonable doubt as to 12 the guilt of the applicant; 13 (8) that, after the imposition of sentence, the applicant seeks to 14 withdraw a plea of guilty or nolo contendere in order to correct manifest injustice 15 under the Alaska Rules of Criminal Procedure; or 16 (9) that the applicant was not afforded effective assistance of counsel 17 at trial or on direct appeal. 18 * Sec. 5. AS 12.72.030 is amended by adding a new subsection to read: 19 (b) A person who files an application for post-conviction relief under this 20 chapter or the Alaska Rules of Criminal Procedure may not pursue discovery related to 21 the application unless the applicant first pleads a prima facie case for relief and the 22 court finds that a prima facie case for relief has been established under this chapter or 23 the Alaska Rules of Criminal Procedure. 24 * Sec. 6. AS 12 is amended by adding a new chapter to read: 25 Chapter 73. Post-Conviction DNA Testing Procedures. 26 Sec. 12.73.010. Application for post-conviction DNA testing. (a) A person 27 convicted of a felony against a person under AS 11.41 who has not been 28 unconditionally discharged may apply to the superior court for an order for DNA 29 testing of evidence. The application must be filed in the court that entered the 30 judgment of conviction, and a copy shall be served on the prosecuting authority 31 responsible for obtaining the conviction.
01 (b) An application filed under (a) of this section must specifically identify the 02 evidence sought to be tested and must include facts from which the court can make the 03 findings required under AS 12.73.020. The application must also include 04 (1) an affidavit by the applicant that attests to the following: 05 (A) the applicant did not commit the offense for which the 06 applicant was convicted or a lesser included offense; 07 (B) the applicant did not solicit another person to commit, or 08 aid or abet another person in planning or committing, that offense or a lesser 09 included offense; and 10 (C) the applicant did not admit or concede guilt under oath in 11 an official proceeding for the offense that was the basis of the conviction or a 12 lesser included offense, except that the court, in the interest of justice, may 13 waive this requirement; for the purposes of this subparagraph, the entry of a 14 guilty or nolo contendere plea is not an admission or concession of guilt; 15 (2) an affidavit by the applicant or the applicant's attorney stating the 16 results of each DNA test performed on the evidence in the prosecution that resulted in 17 the applicant's conviction; 18 (3) an affidavit by the applicant or the applicant's attorney describing 19 all previous efforts to obtain DNA testing and any previous application filed under 20 AS 12.72 or this section. 21 (c) An attorney who represents an applicant under this section shall investigate 22 and, if possible, confirm the accuracy of information provided by the applicant under 23 (b)(2) and (3) of this section. 24 (d) If an applicant is indigent, filing fees must be paid under AS 09.19, and 25 counsel shall be appointed under AS 18.85.100 to represent the applicant. 26 Sec. 12.73.020. Findings required for post-conviction DNA testing orders. 27 The court shall order post-conviction DNA testing of specific evidence if 28 (1) the applicant was convicted of a felony under AS 11.41; 29 (2) the applicant and, if represented, the applicant's attorney, have 30 submitted the affidavits required by AS 12.73.010(b); 31 (3) the applicant did not admit or concede guilt under oath in an
01 official proceeding for the offense that was the basis of the conviction or a lesser 02 included offense, except that the court, in the interest of justice, may waive this 03 requirement; for the purposes of this paragraph, the entry of a guilty or nolo 04 contendere plea is not an admission or concession of guilt; 05 (4) the evidence either 06 (A) was not subjected to DNA testing; or 07 (B) was previously subjected to DNA testing, and 08 (i) the applicant is requesting DNA testing using a 09 method or technology that is substantially more probative than the 10 previous DNA testing; or 11 (ii) the court determines that granting the application is 12 in the best interest of justice; 13 (5) the evidence to be tested has been subject to a chain of custody and 14 retained under conditions that ensure that the evidence has not been substituted, 15 contaminated, or altered in any manner material to the proposed DNA testing; 16 (6) the proposed DNA testing is reasonable in scope, uses scientifically 17 sound methods, and is consistent with accepted forensic practices; 18 (7) the applicant identifies a theory of defense that would establish the 19 applicant's innocence; 20 (8) the applicant was convicted after a trial and the identity of the 21 perpetrator was a disputed issue in the trial; 22 (9) the proposed DNA testing of the specific evidence may produce 23 new material evidence that would 24 (A) support the theory of defense described in (7) of this 25 section; and 26 (B) raise a reasonable probability that the applicant did not 27 commit the offense; 28 (10) the applicant consents to provide a DNA sample for purposes of 29 comparison and to entry of the results into the DNA identification registration system 30 under AS 44.41.035 and into any other law enforcement database; and 31 (11) the application is timely as described in AS 12.73.040.
01 Sec. 12.73.030. Summary dismissal and response. (a) If an application under 02 AS 12.73.010(a) does not set out the specific facts necessary for the court to make the 03 findings required under AS 12.73.020 or does not comply with AS 12.73.010(b), the 04 court shall deny the application without further proceedings. 05 (b) If an application filed under AS 12.73.010(a) is not denied under (a) of this 06 section, the prosecuting authority shall file a response within 45 days after service of 07 the application. The court shall conduct an evidentiary hearing to resolve any disputed 08 facts. 09 Sec. 12.73.040. Timeliness. In determining whether an application is timely 10 under AS 12.73.020(11), there is a presumption of 11 (1) timeliness if the application is filed before three years after the date 12 of conviction; this presumption may be rebutted if the court finds that the application 13 is based solely upon information used in a previously denied application; and 14 (2) untimeliness if the application is filed three years or more after 15 conviction; this presumption may be rebutted if the court finds good cause for filing 16 three years or more after conviction. 17 Sec. 12.73.050. Testing procedures. (a) If the court grants the application and 18 DNA samples for comparison purposes are required, samples taken from the applicant 19 or a prisoner must be collected at a law enforcement or correctional facility. If the 20 DNA sample is being collected from a person other than the applicant or a prisoner, 21 the sample must be taken by a law enforcement officer or other authorized person at a 22 location that is convenient for the person from whom the sample is being collected and 23 the person collecting the sample. 24 (b) The court may not order that a person other than the applicant provide a 25 DNA sample for comparison purposes unless that person is first afforded notice and an 26 opportunity to be heard by the court. The results of DNA testing of a sample provided 27 by a person other than the applicant may not be made available to the DNA 28 identification registration system under AS 44.41.035 or to any other law enforcement 29 database unless specifically ordered by the court. 30 (c) DNA testing ordered under this section shall be performed at the state's 31 expense and at a laboratory operated or approved by the Department of Public Safety.
01 If, after completion of the testing ordered under this section, an applicant requests 02 additional testing, any additional testing ordered by the court at the applicant's request 03 must be at the applicant's expense. If the court orders additional testing by another 04 laboratory at the request of the applicant, the laboratory operated or approved by the 05 Department of Public Safety shall preserve a portion of the evidence for later testing. 06 A laboratory selected by the applicant to perform testing under this section must 07 comply with the quality assurance standards for DNA adopted by the United States 08 Department of Justice and be accredited by the American Society of Crime Laboratory 09 Directors Laboratory Accreditation Board or accepted as equivalent by the 10 Department of Public Safety. 11 (d) Except as provided in (b) of this section, the results of testing ordered 12 under this section shall be entered into the DNA identification registration system 13 under AS 44.41.035 and into any other law enforcement database available to the 14 Department of Public Safety. 15 Sec. 12.73.060. Post-conviction testing by stipulation. The provisions of this 16 chapter do not prohibit an applicant and the prosecuting authority from agreeing to 17 conduct post-conviction DNA testing without the person's filing an application under 18 this chapter. The parties may also stipulate to the payment of costs for the DNA 19 testing and other costs associated with the terms of the agreement. 20 Sec. 12.73.090. Definitions. In this chapter, unless the context requires 21 otherwise, 22 (1) "DNA" means deoxyribonucleic acid; 23 (2) "innocence" means that the applicant was not a perpetrator of or an 24 accomplice to the offense or lesser included offense for which the applicant was 25 convicted; 26 (3) "prisoner" has the meaning given in AS 33.30.901; 27 (4) "unconditionally discharged" means that a defendant is released 28 from all disability arising under a sentence, including probation and parole. 29 * Sec. 7. AS 18.85.100 is amended by adding a new subsection to read: 30 (g) An indigent person is entitled to representation under (a) and (b) of this 31 section for purposes of bringing an application for post-conviction DNA testing under
01 AS 12.73. 02 * Sec. 8. AS 44.41.035(b) is amended to read: 03 (b) The Department of Public Safety shall collect for inclusion into the DNA 04 identification registration system a blood sample, oral sample, or both, from (1) a 05 person convicted in this state of a crime against a person or a felony under AS 11 or 06 AS 28.35 or a law or ordinance with elements similar to a crime against a person or a 07 felony under AS 11 or AS 28.35, (2) a minor [16 YEARS OF AGE OR OLDER,] 08 adjudicated as a delinquent in this state for an act committed when the minor was 16 09 years of age or older that would be a crime against a person or a felony under AS 11 10 or AS 28.35 if committed by an adult or for an act that would violate a law or 11 ordinance with elements similar to a crime against a person or a felony under AS 11 or 12 AS 28.35 if committed by an adult, (3) a voluntary donor, (4) an anonymous DNA 13 donor for use in forensic validation, forensic protocol development, quality control, or 14 population or statistical data bases, (5) a person required to register as a sex offender 15 or child kidnapper under AS 12.63, and (6) a person arrested for a crime against a 16 person or a felony under AS 11 or AS 28.35, or a law or ordinance with elements 17 similar to a crime against a person or a felony under AS 11 or AS 28.35. The 18 department also may collect for inclusion into the DNA identification registration 19 system a blood sample, oral sample, or tissue sample from crime scene evidence or 20 from unidentified human remains. The DNA identification registration system consists 21 of the blood, oral, or tissue samples drawn under this section, any DNA or other blood 22 grouping tests done on those samples, and the identification data related to the samples 23 or tests. Blood samples, oral samples, and tissue samples not subject to testing under 24 this section, and test or identification data related to those samples, may not be entered 25 into, or made a part of, the DNA identification registration system. 26 * Sec. 9. AS 44.41.035(g) is amended to read: 27 (g) A person or minor from whom a sample has been collected under this 28 section 29 (1) may inspect and obtain a copy of the identification data regarding 30 the person or minor contained within the DNA identification registration system; and 31 (2) may request the Department of Public Safety to destroy the
01 material in the system regarding the person or minor under the provisions 02 described in (i) of this section. 03 * Sec. 10. AS 44.41.035(i) is amended to read: 04 (i) The Department of Public Safety shall [, UPON RECEIPT OF A COURT 05 ORDER,] destroy the material in the system relating to a person or minor on the 06 written request of the person or minor, if the request is accompanied by a 07 certified copy of a court order making the written findings required by this 08 subsection. The court shall issue an [THE] order under this subsection if the 09 person's or minor's DNA was included in the system under 10 (1) (b)(1) or (2) of this section, and the court order establishes 11 [DETERMINES] that 12 (A) the conviction or adjudication that subjected the person to 13 having a sample taken under this section was [IS] reversed; and 14 (B) the person 15 (i) was [IS] not retried, readjudicated, or convicted or 16 adjudicated for another crime that requires having a sample taken under 17 this section; or 18 (ii) after retrial, was [IS] acquitted of the crime or, after 19 readjudication for the crime, was [IS] not found to be a delinquent, and 20 was [IS] not convicted or adjudicated for another crime that requires a 21 sample under this section; 22 (2) (b)(6) of this section, and the court order establishes 23 [DETERMINES] that 24 (A) the person arrested was released without being charged; 25 [OR] 26 (B) the criminal complaint, indictment, presentment, or 27 information for the offense for which the person was arrested was dismissed, 28 and a criminal complaint, indictment, presentment, or information for an 29 offense requiring submission of a DNA sample was [IS] not refiled; or 30 (C) the person was found by the trier of fact to be not guilty 31 of the offense for which the person was arrested and was not convicted of
01 another offense requiring submission of a DNA sample under (b)(1) or (2) 02 of this section. 03 * Sec. 11. AS 44.41.035(k) is amended to read: 04 (k) The provisions of this section apply to a person or a minor from another 05 state that this state has accepted under any interstate corrections or probation 06 agreement or compact, regardless of whether the person or minor is confined or 07 released, if the person was convicted of or the minor was adjudicated for an offense 08 that is similar to an offense described in (b) of this section. 09 * Sec. 12. AS 44.41.035(o) is amended to read: 10 (o) A person or minor may not bring a civil action against the state or a 11 municipality, or their employees or agents, for actions arising out of DNA collection 12 in conformity with this section. 13 * Sec. 13. AS 44.41.035 is amended by adding new subsections to read: 14 (r) A DNA sample collected or placed in the DNA identification registration 15 system that was taken or retained in good faith may be used as provided by law in a 16 criminal investigation. Evidence obtained from a match from a data collection system 17 may be used in a criminal prosecution or juvenile adjudication if the DNA sample was 18 taken or retained in good faith, even if the DNA sample is later removed from the 19 DNA identification registration system. 20 (s) If a sample collected under (b) of this section does not contain sufficient 21 material necessary to obtain an accurate DNA identification authorized under this 22 section, the Department of Public Safety or other agency authorized by the 23 Department of Public Safety may collect another sample. 24 * Sec. 14. The uncodified law of the State of Alaska is amended by adding a new section to 25 read: 26 INDIRECT COURT RULE CHANGE. AS 12.73, added by sec. 6 of this Act, has the 27 effect of amending Rule 35.1, Alaska Rules of Criminal Procedure, relating to post-conviction 28 relief procedure. 29 * Sec. 15. The uncodified law of the State of Alaska is amended by adding a new section to 30 read: 31 TASK FORCE ON STANDARDS AND TRAINING OF EVIDENCE
01 TECHNICIANS. (a) The Task Force on Standards and Training of Evidence Technicians is 02 created in the Department of Law. The task force consists of the following persons appointed 03 by the governor: 04 (1) the attorney general; 05 (2) the public defender; 06 (3) the director of the office of public advocacy; 07 (4) a chief of a municipal police department not on the state's interconnected 08 road system; 09 (5) the commissioner of public safety; 10 (6) a chief of a municipal police department; 11 (7) a representative of the Alaska Innocence Project; 12 (8) a representative of the Alaska Native Justice Center; and 13 (9) a representative of the state crime lab. 14 (b) There shall be three ex officio members of the task force as follows: 15 (1) a member of the House Judiciary Committee selected by the speaker of the 16 house of representatives; 17 (2) a member of the Senate Judiciary Committee selected by the president of 18 the senate; and 19 (3) the victims' advocate. 20 (c) Persons appointed under (a) of this section or identified under (b) of this section 21 may select a designee from the same agency or organization to act on the person's behalf as a 22 member of the task force. 23 (d) Not later than December 31, 2012, the task force shall 24 (1) devise standards regarding the proper collection, retention, and cataloging 25 of evidence, for ongoing investigations and prosecutions; 26 (2) recommend practices, protocols, models, and resources for the cataloging 27 and accessibility of preserved evidence and return of property to owners. 28 * Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to 29 read: 30 APPLICABILITY. (a) AS 12.36.200, enacted by sec. 3 of this Act, applies to all 31 evidence in the possession of an agency, as defined in AS 12.36.200(i), on or after January 1,
01 2011, for evidence collected before, on, or after the effective date of this Act. 02 (b) AS 12.73, enacted by sec. 6 of this Act, applies to offenses committed before, on, 03 or after the effective date of this Act. 04 (c) Notwithstanding any other provision of law, a person whose conviction was 05 entered before July 1, 2010, has until July 1, 2020, to file a claim under AS 12.73, enacted by 06 sec. 6 of this Act, or a later date if the court finds good cause for a later filing. 07 * Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to 08 read: 09 CONDITIONAL EFFECT. AS 12.73, added by sec. 6 of this Act, takes effect only if 10 sec. 14 of this Act receives the two-thirds majority vote of each house required by art. IV, sec. 11 15, Constitution of the State of Alaska. 12 * Sec. 18. Section 15 of this Act is repealed January 1, 2013. 13 * Sec. 19. This Act takes effect July 1, 2010.