102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB3741

 

Introduced 2/22/2021, by Rep. Jehan Gordon-Booth

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/33-5
725 ILCS 5/116-4

    Amends the Code of Criminal Procedure of 1963. Provides that notwithstanding any provision of the Code to the contrary, forensic testing that would result in the complete consumption of an evidentiary sample shall be permitted if the forensic testing utilizes methods sufficiently established in the particular field that have gained general acceptance and the forensic testing was not conducted in bad faith. Provides that prior to conducting forensic testing that would result in the complete consumption of an evidentiary sample, a forensic scientist must take all reasonable measures to preserve a portion of the evidentiary sample for subsequent forensic testing, unless in the course of the requested forensic testing, the forensic scientist has determined that complete consumption of an evidentiary sample is required to pursue a meaningful analytical result. Amends the Criminal Code of 2012. Provides that it is unlawful for a law enforcement agency or an agent acting on behalf of the law enforcement agency to intentionally fail to comply with the provision. Provides that a violation is a Class 4 felony.


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CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 2012 is amended by
5changing Section 33-5 as follows:
 
6    (720 ILCS 5/33-5)
7    Sec. 33-5. Preservation of evidence.
8    (a) It is unlawful for a law enforcement agency or an agent
9acting on behalf of the law enforcement agency to
10intentionally fail to comply with the provisions of
11subsections subsection (a) or (a-5) of Section 116-4 of the
12Code of Criminal Procedure of 1963.
13    (b) Sentence. A person who violates this Section is guilty
14of a Class 4 felony.
15    (c) For purposes of this Section, "law enforcement agency"
16has the meaning ascribed to it in subsection (e) of Section
17116-4 of the Code of Criminal Procedure of 1963.
18(Source: P.A. 91-871, eff. 1-1-01; 92-459, eff. 8-22-01.)
 
19    Section 10. The Code of Criminal Procedure of 1963 is
20amended by changing Section 116-4 as follows:
 
21    (725 ILCS 5/116-4)

 

 

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1    Sec. 116-4. Preservation of evidence for forensic testing.
2    (a) Before or after the trial in a prosecution for a
3violation of Section 11-1.20, 11-1.30, 11-1.40, 11-1.50,
411-1.60, 12-13, 12-14, 12-14.1, 12-15, or 12-16 of the
5Criminal Code of 1961 or the Criminal Code of 2012 or in a
6prosecution for an offense defined in Article 9 of that Code,
7or in a prosecution for an attempt in violation of Section 8-4
8of that Code of any of the above-enumerated offenses, unless
9otherwise provided herein under subsection (b) or (c) this
10Section, a law enforcement agency or an agent acting on behalf
11of the law enforcement agency shall preserve, subject to a
12continuous chain of custody, any physical evidence in their
13possession or control that is reasonably likely to contain
14forensic evidence, including, but not limited to, fingerprints
15or biological material secured in relation to a trial and with
16sufficient documentation to locate that evidence.
17    (a-5) Notwithstanding any provision of this Code to the
18contrary, forensic testing that would result in the complete
19consumption of an evidentiary sample shall be permitted if the
20forensic testing utilizes methods sufficiently established in
21the particular field that have gained general acceptance and
22the forensic testing was not conducted in bad faith. Prior to
23conducting forensic testing that would result in the complete
24consumption of an evidentiary sample, a forensic scientist
25must take all reasonable measures to preserve a portion of the
26evidentiary sample for subsequent forensic testing, unless in

 

 

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1the course of the requested forensic testing, the forensic
2scientist has determined that complete consumption of an
3evidentiary sample is required to pursue a meaningful
4analytical result.
5    (b) After a judgment of conviction is entered, the
6evidence shall either be impounded with the Clerk of the
7Circuit Court or shall be securely retained by a law
8enforcement agency. Retention shall be permanent in cases
9where a sentence of death is imposed. Retention shall be until
10the completion of the sentence, including the period of
11mandatory supervised release for the offense, or January 1,
122006, whichever is later, for any conviction for an offense or
13an attempt of an offense defined in Article 9 of the Criminal
14Code of 1961 or the Criminal Code of 2012 or in Section
1511-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14,
1612-14.1, 12-15, or 12-16 of the Criminal Code of 1961 or the
17Criminal Code of 2012 or for 7 years following any conviction
18for any other felony for which the defendant's genetic profile
19may be taken by a law enforcement agency and submitted for
20comparison in a forensic DNA database for unsolved offenses.
21    (c) After a judgment of conviction is entered, the law
22enforcement agency required to retain evidence described in
23subsection (a) may petition the court with notice to the
24defendant or, in cases where the defendant has died, his or her
25estate, his or her attorney of record, or an attorney
26appointed for that purpose by the court for entry of an order

 

 

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1allowing it to dispose of evidence if, after a hearing, the
2court determines by a preponderance of the evidence that:
3        (1) it has no significant value for forensic science
4    analysis and should be returned to its rightful owner,
5    destroyed, used for training purposes, or as otherwise
6    provided by law; or
7        (2) it has no significant value for forensic science
8    analysis and is of a size, bulk, or physical character not
9    usually retained by the law enforcement agency and cannot
10    practicably be retained by the law enforcement agency; or
11        (3) there no longer exists a reasonable basis to
12    require the preservation of the evidence because of the
13    death of the defendant; however, this paragraph (3) does
14    not apply if a sentence of death was imposed.
15    (d) The court may order the disposition of the evidence if
16the defendant is allowed the opportunity to take reasonable
17measures to remove or preserve portions of the evidence in
18question for future testing.
19    (d-5) Any order allowing the disposition of evidence
20pursuant to subsection (c) or (d) shall be a final and
21appealable order. No evidence shall be disposed of until 30
22days after the order is entered, and if a notice of appeal is
23filed, no evidence shall be disposed of until the mandate has
24been received by the circuit court from the appellate court.
25    (d-10) All records documenting the possession, control,
26storage, and destruction of evidence and all police reports,

 

 

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1evidence control or inventory records, and other reports cited
2in this Section, including computer records, must be retained
3for as long as the evidence exists and may not be disposed of
4without the approval of the Local Records Commission.
5    (e) In this Section, "law enforcement agency" includes any
6of the following or an agent acting on behalf of any of the
7following: a municipal police department, county sheriff's
8office, any prosecuting authority, the Department of State
9Police, or any other State, university, county, federal, or
10municipal police unit or police force.
11    "Biological material" includes, but is not limited to, any
12blood, hair, saliva, or semen from which genetic marker
13groupings may be obtained.
14(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)