HB5537 96TH GENERAL ASSEMBLY

LRB096 18126 RLC 33501 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB5537

Introduced 2/9/2010, by Rep. Susana A. Mendoza

SYNOPSIS AS INTRODUCED:

720 ILCS 5/31-4	from Ch. 38, par. 31-4
725 ILCS 5/107-2.5 new
730 ILCS 5/5-4-3	from Ch. 38, par. 1005-4-3

Amends the Criminal Code of 1961. Provides that the offense of obstructing justice also includes destroying, altering, concealing, disguising, or otherwise tampering with samples collected for DNA fingerprinting analysis. Provides that the offense is a Class 3 felony. Amends the Code of Criminal Procedure of 1963 and the Unified Code of Corrections. Provides that every person arrested for committing a felony shall have a sample of his or her saliva or tissue taken for DNA fingerprinting analysis, at the time of booking, for the purpose of determining identity and for certain other specified purposes. Provides that subject to appropriation, the Department of State Police shall implement this provision. Provides that this provision becomes operative no later than the earlier of the following: (1) the date on which the Department of State Police informs law enforcement agencies that the Department is ready to collect samples; or (2) January 1, 2013. Provides that in the amendatory changes to the Unified Code of Corrections, intentionally using genetic marker grouping analysis information derived from a DNA sample beyond authorized uses is a Class 3 rather than a Class 4 felony. Provides that the identification, detention, arrest, or conviction of a person based upon a database match or database information is not invalidated if it is later determined that the sample should not have been obtained or placed in the database. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Criminal Code of 1961 is amended by changing Section 31-4 as follows:

(720 ILCS 5/31-4) (from Ch. 38, par. 31-4)

Sec. 31-4. Obstructing justice.

(a) A person obstructs justice when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he knowingly commits any of the following acts:

(1) (a) Destroys, alters, conceals or disguises physical evidence, plants false evidence, furnishes false information; or

(2) (b) Induces a witness having knowledge material to the subject at issue to leave the State or conceal himself; or

(3) (c) Possessing knowledge material to the subject at issue, he leaves the State or conceals himself; or .

(4) Destroys, alters, conceals, disguises, or otherwise tampers with samples collected under Section 107-2.5 of the Code of Criminal Procedure of 1963 or Section 5-4-3 of the Unified Code of Corrections.

(b) (d) Sentence.

(1) Obstructing justice is a Class 4 felony, except as provided in paragraph (2) of this subsection (b) (d).

(2) Obstructing justice in furtherance of streetgang related or gang-related activity, as defined in Section 10 of the Illinois Streetgang Terrorism Omnibus Prevention Act, is a Class 3 felony. Obstructing justice in violation of paragraph (a)(4) is a Class 3 felony.

(Source: P.A. 90-363, eff. 1-1-98.)

Section 10. The Code of Criminal Procedure of 1963 is amended by adding Section 107-2.5 as follows:

(725 ILCS 5/107-2.5 new)

Sec. 107-2.5. DNA fingerprinting analysis.

(a) Every person arrested for committing a felony as defined in Section 2-7 of the Criminal Code of 1961 shall have a sample of his or her saliva or tissue taken for DNA fingerprinting analysis, at the time of booking, for the purpose of determining identity and for the purposes specified in this Section and subsection (f) of Section 5-4-3 of the Unified Code of Corrections. Any law enforcement agency extracting DNA samples under this Section shall be required to follow all written rules and regulations for the collection, storage, and processing of those samples promulgated by the Department of State Police. The analysis shall be performed by the Department of State Police or a specific agent approved by the Department of State Police. The identification characteristics resulting from the DNA analysis shall be stored and maintained by the Department of State Police or the specific agent approved by the Department. All results developed from collected DNA samples shall be subject to any and all confidentiality provisions of State and federal laws. The specific agent approved by the Department of State Police to store and analyze DNA samples shall be required to meet all Illinois State Police laboratory accreditation requirements and shall properly forward the results of the DNA analysis to the Department of State Police.

(b) If charges are dismissed or an individual is found not guilty, any expungement of that person's DNA sample shall be in accordance with the procedures set forth in Section 5 of the Criminal Identification Act upon notification to the Department of State Police by the court system.

(c) Subject to appropriation, the Department of State Police shall implement this Section no later than the earlier of the following: (1) the date on which the Department of State Police informs law enforcement agencies that the Department is ready to collect samples; or (2) January 1, 2013.

Section 15. The Unified Code of Corrections is amended by changing Section 5-4-3 as follows:

(730 ILCS 5/5-4-3) (from Ch. 38, par. 1005-4-3)

Sec. 5-4-3. Persons convicted of, or found delinquent for, certain offenses or institutionalized as sexually dangerous; specimens; genetic marker groups.

(a) Any person convicted of, found guilty under the Juvenile Court Act of 1987 for, or who received a disposition of court supervision for, a qualifying offense or attempt of a qualifying offense, arrested for or convicted or found guilty of any offense classified as a felony under Illinois law, convicted or found guilty of any offense requiring registration under the Sex Offender Registration Act, found guilty or given supervision for any offense classified as a felony under the Juvenile Court Act of 1987, convicted or found guilty of, under the Juvenile Court Act of 1987, any offense requiring registration under the Sex Offender Registration Act, or institutionalized as a sexually dangerous person under the Sexually Dangerous Persons Act, or committed as a sexually violent person under the Sexually Violent Persons Commitment Act shall, regardless of the sentence or disposition imposed, be required to submit specimens of blood, saliva, or tissue to the Illinois Department of State Police in accordance with the provisions of this Section, provided such person is:

(1) convicted of a qualifying offense or attempt of a qualifying offense on or after July 1, 1990 and sentenced to a term of imprisonment, periodic imprisonment, fine, probation, conditional discharge or any other form of sentence, or given a disposition of court supervision for the offense;

(1.5) found guilty or given supervision under the Juvenile Court Act of 1987 for a qualifying offense or attempt of a qualifying offense on or after January 1, 1997;

(2) ordered institutionalized as a sexually dangerous person on or after July 1, 1990;

(3) convicted of a qualifying offense or attempt of a qualifying offense before July 1, 1990 and is presently confined as a result of such conviction in any State correctional facility or county jail or is presently serving a sentence of probation, conditional discharge or periodic imprisonment as a result of such conviction;

(3.5) convicted or found guilty of any offense classified as a felony under Illinois law or found guilty or given supervision for such an offense under the Juvenile Court Act of 1987 on or after August 22, 2002;

(4) presently institutionalized as a sexually dangerous person or presently institutionalized as a person found guilty but mentally ill of a sexual offense or attempt to commit a sexual offense;

(4.5) ordered committed as a sexually violent person on or after the effective date of the Sexually Violent Persons Commitment Act; or

(5) seeking transfer to or residency in Illinois under Sections 3-3-11.05 through 3-3-11.5 of the Unified Code of Corrections and the Interstate Compact for Adult Offender Supervision or the Interstate Agreements on Sexually Dangerous Persons Act; or .

(6) arrested and is suspected of committing a felony as defined in Section 2-7 of the Criminal Code of 1961 on or after the operative date of Section 107-2.5 of the Code of Criminal Procedure of 1963.

Notwithstanding other provisions of this Section, any person incarcerated in a facility of the Illinois Department of Corrections or the Illinois Department of Juvenile Justice on or after August 22, 2002, whether for a term of years, natural life, or a sentence of death, who has not yet submitted a sample of blood, saliva, or tissue shall be required to submit a specimen of blood, saliva, or tissue prior to his or her final discharge, or release on parole or mandatory supervised release, as a condition of his or her parole or mandatory supervised release, or within 6 months from August 13, 2009 (the effective date of Public Act 96-426) the effective date of this amendatory Act of the 96th General Assembly, whichever is sooner. A person Persons incarcerated on or after August 13, 2009 (the effective date of Public Act 96-426) the effective date of this amendatory Act of the 96th General Assembly shall be required to submit a sample within 45 days of incarceration, or prior to his or her final discharge, or release on parole or mandatory supervised release, as a condition of his or her parole or mandatory supervised release, whichever is sooner. These specimens shall be placed into the State or national DNA database, to be used in accordance with other provisions of this Section, by the Illinois State Police.

Notwithstanding other provisions of this Section, any person sentenced to life imprisonment in a facility of the Illinois Department of Corrections after the effective date of this amendatory Act of the 94th General Assembly or sentenced to death after the effective date of this amendatory Act of the 94th General Assembly shall be required to provide a specimen of blood, saliva, or tissue within 45 days after sentencing or disposition at a collection site designated by the Illinois Department of State Police. Any person serving a sentence of life imprisonment in a facility of the Illinois Department of Corrections on the effective date of this amendatory Act of the 94th General Assembly or any person who is under a sentence of death on the effective date of this amendatory Act of the 94th General Assembly shall be required to provide a specimen of blood, saliva, or tissue upon request at a collection site designated by the Illinois Department of State Police.

(a-5) Any person who was otherwise convicted of or received a disposition of court supervision for any other offense under the Criminal Code of 1961 or who was found guilty or given supervision for such a violation under the Juvenile Court Act of 1987, may, regardless of the sentence imposed, be required by an order of the court to submit specimens of blood, saliva, or tissue to the Illinois Department of State Police in accordance with the provisions of this Section.

(b) Any person required by paragraphs (a)(1), (a)(1.5), (a)(2), (a)(3.5), and (a-5) to provide specimens of blood, saliva, or tissue shall provide specimens of blood, saliva, or tissue within 45 days after sentencing or disposition at a collection site designated by the Illinois Department of State Police.

(c) Any person required by paragraphs (a)(3), (a)(4), and (a)(4.5) to provide specimens of blood, saliva, or tissue shall be required to provide such samples prior to final discharge or within 6 months from August 13, 2009 (the effective date of Public Act 96-426) the effective date of this amendatory Act of the 96th General Assembly, whichever is sooner. These specimens shall be placed into the State or national DNA database, to be used in accordance with other provisions of this Act, by the Illinois State Police.

(c-5) Any person required by paragraph (a)(5) to provide specimens of blood, saliva, or tissue shall, where feasible, be required to provide the specimens before being accepted for conditioned residency in Illinois under the interstate compact or agreement, but no later than 45 days after arrival in this State.

(c-6) The Illinois Department of State Police may determine which type of specimen or specimens, blood, saliva, or tissue, is acceptable for submission to the Division of Forensic Services for analysis.

(c-7) Any person required by paragraph (a)(6) to provide specimens of saliva or tissue shall be required to provide the specimens at the booking procedure. The law enforcement officer shall verify at each arrest that the arrestee sample is not already on file with the Department of State Police.

(d) The Illinois Department of State Police shall provide all equipment and instructions necessary for the collection of blood samples. The collection of samples shall be performed in a medically approved manner. Only a physician authorized to practice medicine, a registered nurse or other qualified person trained in venipuncture may withdraw blood for the purposes of this Act. The samples shall thereafter be forwarded to the Illinois Department of State Police, Division of Forensic Services, for analysis and categorizing into genetic marker groupings.

(d-1) The Illinois Department of State Police shall provide all equipment and instructions necessary for the collection of saliva samples under this Section. The collection of saliva samples shall be performed in a medically approved manner. Only a person trained in the instructions promulgated by the Illinois State Police on collecting saliva may collect saliva for the purposes of this Section. The samples shall thereafter be forwarded to the Illinois Department of State Police, Division of Forensic Services, for analysis and categorizing into genetic marker groupings.

(d-2) The Illinois Department of State Police shall provide all equipment and instructions necessary for the collection of tissue samples under this Section. The collection of tissue samples shall be performed in a medically approved manner. Only a person trained in the instructions promulgated by the Illinois State Police on collecting tissue may collect tissue for the purposes of this Section. The samples shall thereafter be forwarded to the Illinois Department of State Police, Division of Forensic Services, for analysis and categorizing into genetic marker groupings.

(d-5) To the extent that funds are available, the Illinois Department of State Police shall contract with qualified personnel and certified laboratories for the collection, analysis, and categorization of known samples, except as provided in subsection (n) of this Section.

(d-6) Agencies designated by the Illinois Department of State Police and the Illinois Department of State Police may contract with third parties to provide for the collection or analysis of DNA, or both, of an offender's blood, saliva, and tissue samples, except as provided in subsection (n) of this Section.

(e) The genetic marker groupings shall be maintained by the Illinois Department of State Police, Division of Forensic Services.

(f) The genetic marker grouping analysis information obtained pursuant to this Act and the information obtained under Section 107-2.5 of the Code of Criminal Procedure of 1963 shall be confidential and shall be released only to peace officers of the United States, of other states or territories, of the insular possessions of the United States, of foreign countries duly authorized to receive the same, to all peace officers of the State of Illinois and to all prosecutorial agencies, and to defense counsel as provided by Section 116-5 of the Code of Criminal Procedure of 1963. The genetic marker grouping analysis information obtained pursuant to this Act shall be used only for (i) valid law enforcement identification purposes and as required by the Federal Bureau of Investigation for participation in the National DNA database, (ii) technology validation purposes, (iii) a population statistics database, (iv) quality assurance purposes if personally identifying information is removed, (v) assisting in the defense of the criminally accused pursuant to Section 116-5 of the Code of Criminal Procedure of 1963, or (vi) identifying and assisting in the prosecution of a person who is suspected of committing a sexual assault as defined in Section 1a of the Sexual Assault Survivors Emergency Treatment Act. Having established the State DNA identification index, a match between casework evidence DNA samples from a criminal investigation and DNA samples from a State or federal DNA database of eligible offenders may be used only to sustain probable cause for the issuance of a warrant to obtain the DNA sample from an eligible offender for confirmation. The identification, detention, arrest, or conviction of a person based upon a database match or database information is not invalidated if it is later determined that the sample should not have been obtained or placed in the database. Notwithstanding any other statutory provision to the contrary, all information obtained under this Section shall be maintained in a single State data base, which may be uploaded into a national database, and which information may be subject to expungement only as set forth in subsection (f-1).

(f-1) Upon receipt of a certified copy of a final court order for notification of a reversal of each a conviction based on actual innocence, or of the granting of a pardon pursuant to Section 12 of Article V of the Illinois Constitution, if that pardon document specifically states that the reason for the pardon is the actual innocence of an individual whose DNA record has been stored in the State or national DNA identification index in accordance with this Section by the Illinois Department of State Police, the DNA record for that conviction shall be expunged from the DNA identification index, and the Department shall by rule prescribe procedures to ensure that the record and any samples, analyses, or other documents relating to such record, whether in the possession or control of the Department or any law enforcement or police agency, or any forensic DNA laboratory, including any duplicates or copies thereof, are destroyed and a letter is sent to the court verifying the expungement is completed.

Upon receipt of a certified copy of a final court order for each charge against an individual, whose DNA record has been stored in the State or national DNA identification index in accordance with this Section by the Illinois Department of State Police, establishing that such a charge has been dismissed or resulted in acquittal or that no charge was filed within the applicable time period, the DNA record for that arrest shall be expunged from the DNA identification index, and the Department shall by rule prescribe procedures to ensure that the record and any samples, analyses, or other documents relating to such records, in the possession or control of the Department are destroyed and a letter is sent to the court verifying the expungement is completed.

(f-5) Any person who intentionally uses genetic marker grouping analysis information, or any other information derived from a DNA sample, beyond the authorized uses as provided under this Section or under Section 107-2.5 of the Code of Criminal Procedure of 1963, or any other Illinois law, is guilty of a Class 3 4 felony, and shall be subject to a fine of not less than $5,000.

(f-6) The Illinois Department of State Police may contract with third parties for the purposes of implementing this amendatory Act of the 93rd General Assembly, except as provided in subsection (n) of this Section. Any other party contracting to carry out the functions of this Section shall be subject to the same restrictions and requirements of this Section insofar as applicable, as the Illinois Department of State Police, and to any additional restrictions imposed by the Illinois Department of State Police.

(g) For the purposes of this Section, "qualifying offense" means any of the following:

(1) any violation or inchoate violation of Section 11-6, 11-9.1, 11-11, 11-18.1, 12-15, or 12-16 of the Criminal Code of 1961;

(1.1) any violation or inchoate violation of Section 9-1, 9-2, 10-1, 10-2, 12-11, 12-11.1, 18-1, 18-2, 18-3, 18-4, 19-1, or 19-2 of the Criminal Code of 1961 for which persons are convicted on or after July 1, 2001;

(2) any former statute of this State which defined a felony sexual offense;

(3) (blank);

(4) any inchoate violation of Section 9-3.1, 11-9.3, 12-7.3, or 12-7.4 of the Criminal Code of 1961; or

(5) any violation or inchoate violation of Article 29D of the Criminal Code of 1961.

(g-5) (Blank).

(h) The Illinois Department of State Police shall be the State central repository for all genetic marker grouping analysis information obtained pursuant to this Act. The Illinois Department of State Police may promulgate rules for the form and manner of the collection of blood, saliva, or tissue samples and other procedures for the operation of this Act. The provisions of the Administrative Review Law shall apply to all actions taken under the rules so promulgated.

(i) (1) A person required to provide a blood, saliva, or tissue specimen shall cooperate with the collection of the specimen and any deliberate act by that person intended to impede, delay or stop the collection of the blood, saliva, or tissue specimen is a Class A misdemeanor.

(2) In the event that a person's DNA sample is not adequate for any reason, the person shall provide another DNA sample for analysis. Duly authorized law enforcement and corrections personnel may employ reasonable force in cases in which an individual refuses to provide a DNA sample required under this Act.

(j) Any person sentenced and required by subsection (a) to submit specimens of blood, saliva, or tissue to the Illinois Department of State Police for analysis and categorization into genetic marker grouping, in addition to any other disposition, penalty, or fine imposed, shall pay an analysis fee of $200. If the analysis fee is not paid at the time of sentencing, the court shall establish a fee schedule by which the entire amount of the analysis fee shall be paid in full, such schedule not to exceed 24 months from the time of conviction. The inability to pay this analysis fee shall not be the sole ground to incarcerate the person.

(k) All analysis and categorization fees provided for by subsection (j) shall be regulated as follows:

(1) The State Offender DNA Identification System Fund is hereby created as a special fund in the State Treasury.

(2) All fees shall be collected by the clerk of the court and forwarded to the State Offender DNA Identification System Fund for deposit. The clerk of the circuit court may retain the amount of $10 from each collected analysis fee to offset administrative costs incurred in carrying out the clerk's responsibilities under this Section.

(3) Fees deposited into the State Offender DNA Identification System Fund shall be used by Illinois State Police crime laboratories as designated by the Director of State Police. These funds shall be in addition to any allocations made pursuant to existing laws and shall be designated for the exclusive use of State crime laboratories. These uses may include, but are not limited to, the following:

(A) Costs incurred in providing analysis and genetic marker categorization as required by subsection (d).

(B) Costs incurred in maintaining genetic marker groupings as required by subsection (e).

(C) Costs incurred in the purchase and maintenance of equipment for use in performing analyses.

(D) Costs incurred in continuing research and development of new techniques for analysis and genetic marker categorization.

(E) Costs incurred in continuing education, training, and professional development of forensic scientists regularly employed by these laboratories.

(l) The failure of a person to provide a specimen, or of any person or agency to collect a specimen, within the 45 day period shall in no way alter the obligation of the person to submit such specimen, or the authority of the Illinois Department of State Police or persons designated by the Department to collect the specimen, or the authority of the Illinois Department of State Police to accept, analyze and maintain the specimen or to maintain or upload results of genetic marker grouping analysis information into a State or national database.

(m) If any provision of Public Act 93-216 this amendatory Act of the 93rd General Assembly is held unconstitutional or otherwise invalid, the remainder of Public Act 93-216 this amendatory Act of the 93rd General Assembly is not affected.

(n) Neither the Department of State Police, the Division of Forensic Services, nor any laboratory of the Division of Forensic Services may contract out forensic testing for the purpose of an active investigation or a matter pending before a court of competent jurisdiction without the written consent of the prosecuting agency. For the purposes of this subsection (n), "forensic testing" includes the analysis of physical evidence in an investigation or other proceeding for the prosecution of a violation of the Criminal Code of 1961 or for matters adjudicated under the Juvenile Court Act of 1987, and includes the use of forensic databases and databanks, including DNA, firearm, and fingerprint databases, and expert testimony.

(o) If any provision of this amendatory Act of the 96th General Assembly is held unconstitutional or otherwise invalid, the remainder of this amendatory Act of the 96th General Assembly is not affected.

(Source: P.A. 96-426, eff. 8-13-09; 96-642, eff. 8-24-09; revised 9-15-09.)

Section 99. Effective date. This Act takes effect upon becoming law.