AUTHORITY: Implementing and authorized by Section 5-4-3 of the Unified Code of Corrections [730 ILCS 5/5-4-3] and authorized by Section 2605-15 of the Civil Administrative Code of Illinois [20 ILCS 2605/2605-15].

SOURCE: Adopted at 16 Ill. Reg. 12595, effective July 23, 1992; amended at 17 Ill. Reg. 22571, effective December 15, 1993; amended at 21 Ill. Reg. 17110, effective December 11, 1997; emergency amendment at 26 Ill. Reg. 18493, effective December 16, 2002, for a maximum of 150 days; amended at 27 Ill. Reg. 8303, effective April 28, 2003; amended at 31 Ill. Reg. 9249, effective June 12, 2007; emergency amendment at 36 Ill. Reg. 342, effective January 1, 2012, for a maximum of 150 days; amended at 36 Ill. Reg. 5610, effective March 26, 2012.

SUBPART A: PROMULGATION

 

Section 1285.10  Purpose

 

a)         The purpose of this Part is to provide procedures and define responsibilities for the collection of body fluid samples from offenders or other individuals eligible per statute for collection and databasing.  These samples are required by law to be collected to enable genetic marker grouping analysis and indexing.  The results shall be available for future criminal investigations and other forensic analysis purposes.  Genetic marker grouping analysis and indexing may include, but is not limited to, those procedures known as DNA profiling, DNA indexing, and other processes used to identify distinctive genetic characteristics.

 

b)         A match between casework evidence DNA samples from a criminal investigation and DNA samples from a state or federal offender DNA database may be used only to sustain probable cause for the issuance of a warrant to obtain a separate DNA sample for confirmation.

 

c)         If it is determined that a sample was not eligible for the database after the sample was matched during a search, the laboratory will proceed as if the sample was in fact eligible.  The profile will be removed from CODIS, and the sample will be retained until such time an expungement order is received.

 

(Source:  Amended at 36 Ill. Reg. 5610, effective March 26, 2012)

 

Section 1285.20  Definitions

 

Unless specified otherwise, all terms shall have the meaning set forth in Section 5-4-3 of the Unified Code of Corrections [730 ILCS 5/5-4-3].  For purposes of this Part, the following additional definitions apply:

 

                        "Act" means the Unified Code of Corrections [730 ILCS 5].

 

                        "CODIS" means the Combined DNA Index System.

 

                        "Department" means the Illinois Department of State Police.

 

"Designated Agency" means the entity designated by this Part to be responsible for the identification of and collection of samples from eligible individuals per statute and includes successor agencies.

 

"FBI" means the Federal Bureau of Investigation.

 

"Kit" means the Genetic Marker Indexing Kit provided by the Department.

 

"NDIS" means the FBI's National DNA Index System.

 

"Qualifying offender" means any person described in Section 5-4-3 of the Act.

 

"Registering agency" means the agency responsible for registering a sex offender.

 

"Sample" means specimens of biological material from a qualifying offender.

 

(Source:  Amended at 36 Ill. Reg. 5610, effective March 26, 2012)

SUBPART B: OPERATIONS

 

Section 1285.30  Responsibilities

 

a)         After the occurrence of one of the qualifying events specified in Section 5-4-3(a-3.2) of the Act or at the sentencing of the otherwise qualified offender, the judge shall issue an order requiring the offender to provide specimens that shall be submitted to the Department in accordance with Section 5-4-3 of the Act.

 

b)         The designated agency responsible for sample collection of qualifying offenders is as follows:

 

1)         If the qualifying offender has not previously had a sample taken and is serving a term of incarceration in a facility under the control of the county sheriff, or is being transferred to another state to serve the sentence, the sheriff's office is the designated agency and is responsible for the collection of the sample prior to the release or transfer of the offender.

 

2)         If the qualifying offender has not previously had a sample taken and is transferred to a facility under the control of the Department of Corrections to serve a term of incarceration, the Department of Corrections is the designated agency and is responsible for the collection of the sample from the offender before his/her release on parole, or mandatory supervised release or final discharge or, in the event the offender is sentenced to death or natural life, at any time.

 

3)         If the qualifying offender has not previously had a sample taken and is transferred to a facility under the control of the Department of Juvenile Justice to serve a term of incarceration, the Department of Juvenile Justice is the designated agency and is responsible for the collection of the sample from the offender before his/her release on parole, mandatory supervised release or final discharge or, in the event the offender is sentenced to death or natural life, at any time.

 

4)         If the qualifying offender has not previously had a sample collected and is transferred to the Department of Corrections to be institutionalized as a sexually dangerous person or institutionalized as a person found guilty but mentally ill of a sexual offense or an attempted sexual offense, the Department of Corrections is the designated agency and is responsible for the collection of the sample any time prior to release of the offender.

 

5)         If the qualifying offender has not previously had a sample collected and is ordered committed as a sexually violent person, the Department of Human Services is the designated agency and is responsible for the collection of the sample prior to the release of the offender.

 

6)         If the qualifying offender has not previously had a sample collected and is serving a sentence but not physically incarcerated, the supervising agency (such as a probation office) is the designated agency and is responsible for collection of the sample prior to the termination of the sentence. This includes offenders that transfer to Illinois under the Interstate Compact for Adult Offender Supervision [45 ILCS 170] or the Interstate Agreements on Sexually Dangerous Persons Act [45 ILCS 20].

 

7)         If the qualifying offender for any reason is not under the control or supervision of any agency listed in subsections (c)(1) through (c)(6), then the probation authority of the sentencing or ordering jurisdiction is the designated agency.

 

8)         If the qualifying offender has not previously had a sample collected and is required to provide a sample before conviction (e.g., indicted), the county sheriff is the designated agency.

 

9)         If the qualifying offender has not previously had a sample collected and is required to register as a sex offender and is not under supervision by an Illinois criminal justice agency, the registering agency is the designated agency.

                                   

c)         The designated agency is responsible for ensuring that the offender is eligible for collection under the statute.

 

d)         The designated agency is responsible for ensuring that the offender has a complete set of fingerprints on file with the Department of State Police, Bureau of Identification.

 

(Source:  Amended at 36 Ill. Reg. 5610, effective March 26, 2012)

 

Section 1285.40  Voluntary Samples

 

Individuals may voluntarily provide samples for the Convicted Offender DNA database if they sign the informed consent section of the sample collection receipt contained in the collection kit, or by signing a separate consent form provided or approved by the Department of State Police. The voluntary sample will be used for criminal investigations by comparing the DNA profile from the individual with other DNA profiles in the database.  The DNA Indexing Sample Collection Kit is not to be used to collect samples in missing persons investigations.  The local ISP forensic laboratory should be contacted for collection instructions in such investigations.

 

(Source:  Amended at 36 Ill. Reg. 5610, effective March 26, 2012)

 

Section 1285.50  Procedures for Collection

 

a)         Genetic Marker Indexing Kits shall be provided as needed by the Department to the designated agencies.  The designated agencies shall order Genetic Marker Indexing Kits from a vendor specified by the Department.  The kits shall be supplied and shipped at no cost to the designated agency.  Each kit shall contain, but not be limited to, a receipt form, an instruction sheet, and containers for sample collections.

 

b)         The collection site shall be any location chosen by the designated agency for sample collection.

 

c)         The offender shall be positively identified and his/her eligibility ensured under the statute before the samples are collected.

 

d)         The samples shall be collected by qualified personnel as described in Section 5-4-3(d) and Section 5-4-3(d-1) of the Act.

 

e)         Samples collected for submission to the Department shall be buccal swabs, unless otherwise approved by the Director of the Department-DNA Indexing Laboratory or designee.

 

f)         The receipt form, including the fingerprint of the qualifying offender, shall be completed by the designated agency at the time of sample collection.

 

g)         The completed kit shall be delivered or sent to the Department address indicated in the kit instructions.

 

h)         In the event a sample is lost or destroyed or otherwise found inadequate for analysis purposes, the designated agency and the offender are obligated to produce a substitution sample.

 

i)          Alternative collection procedures may be requested by a designated agency and may be utilized if the proposed procedures ensure the quality of the sample and the reliability of the identification and are approved in writing by the Department Director or designee.

 

(Source:  Amended at 31 Ill. Reg. 9249, effective June 12, 2007)

 

Section 1285.60  Privacy Protection

 

a)         Except as provided in subsection (b) of this Section, the results of the genetic marker grouping analysis shall be disclosed only:

 

1)         To criminal justice agencies for law enforcement identification purposes;

 

2)         To a defendant, his/her own genetic marker grouping results, for criminal defense purposes in response to valid subpoenas or other court orders;

 

3)         To law enforcement agencies for investigation of missing persons; or

 

4)         As otherwise required by law.

 

b)         In addition, the Illinois State Police may use test results for a population statistics database or for other research or quality control purposes if personally identifying information is removed.

 

c)         Direct electronic access to genetic marker grouping analysis data may be utilized when available for the purposes of disclosure as allowed in subsection (a) of this Section.

 

(Source:  Amended at 31 Ill. Reg. 9249, effective June 12, 2007)

 

Section 1285.70  Expungement of Records

 

a)         In the event the disposition or conviction upon which a sample collection was based has been reversed based on actual innocence or that a pardon has been granted based on actual innocence, the genetic marker grouping will be removed from the local, State, and national offender databases after receipt of a final court order requiring expungement.  The sample receipt containing personal identifiable information will be destroyed; pointers to computerized sample records will be deleted; the sample will be destroyed in a biologically safe manner; and a letter will be sent to the court verifying the expungement is completed.  With respect to electronic and other means of record keeping for which an index or pointer system is necessary to locate a record, deletion of the index entry or pointer is equivalent to deletion of the record.

 

b)         For specimens required to be collected prior to conviction (e.g., indictee), a certified copy of a final court order pursuant to 730 ILCS 5/5-4-3(f-1) is required to expunge the sample.  The court order shall specifically address all eligible charges against the donor, and include language that the DNA arrestee sample be expunged.

 

c)         Expungements will not be processed if the qualifying offender is also eligible for the database due to a matter not addressed in the court order.  In this situation, the court will be asked for further guidance.

 

d)         Voluntary samples submitted under Section 1285.40 of this Part may only be removed by court order.

 

e)         Samples determined to be ineligible by either the collection agency or laboratory staff, prior to a database match, will be administratively removed upon the receipt of a written request from the collection agency.

 

f)         Expungement requests for samples that are currently involved in a pending database match will be held until all pending matches are addressed.

 

(Source:  Amended at 36 Ill. Reg. 5610, effective March 26, 2012)

 

Section 1285.80  Non-participation

 

a)         Results of genetic marker grouping analysis and access to the State genetic marker database information may be denied to any agency which fails to comply with this Part.

 

b)         Direct access to the State genetic marker database shall only be granted to forensic DNA laboratories in Illinois that are current NDIS participants.

 

(Source:  Amended at 31 Ill. Reg. 9249, effective June 12, 2007)

 

Section 1285.90  Maintenance of Genetic Marker Groupings

 

The Department may maintain its genetic marker grouping data at the National DNA Index System (national database) pursuant to agreement with the Federal Bureau of Investigation.

 

(Source:  Added at 27 Ill. Reg. 8303, effective April 28, 2003)