The newsletter of the ISBA’s Standing Committee on Government Lawyers
A quick guide to the DNA database law in Illinois and the 2012 updates
Pursuant to 730 ILCS 5/5-4-3, a person convicted of, found guilty of, or who received a disposition of court supervision for, a qualifying offense or attempt of a qualifying offense shall be required to submit a specimen of blood, saliva, or tissue to the Illinois Department of State Police. Qualifying offenses are outlined in the statute, but are too numerous to list here. The genetic marker groupings are maintained by the Illinois Department of State Police, Division of Forensic Services.
Additionally, a person seeking transfer to Illinois who is subject to the Interstate Compact for Adult Offender Supervision, or the Interstate Agreements on Sexually Dangerous Persons Act is required to provide a specimen of blood, saliva, or tissue within 45 days after transfer to Illinois.
A person subject to the above must provide a blood, saliva, or tissue specimen and any deliberate act by that person intended to impede, delay, or stop the collection is a Class 4 felony. Prior to 2012, it was a class A misdemeanor.
If a person who is required to submit a sample does not, law enforcement may “employ reasonable force” in cases where an individual refuses to comply.
The State Police can require the submission of fingerprints from anyone who is required to comply with this law. The fingerprint provision is new for 2012.
A person required to submit a specimen must now pay an analysis fee of $250. This is an increase from $200. The inability to pay the fee is not a basis to incarcerate a person.
As of January 1, 2012, a new provision of law has been enacted. Now, any person arrested for any of the following offenses after an indictment, or following a hearing where a judge finds there is probable cause to believe the arrestee has committed the offense, or has waived a preliminary hearing is required to provide a specimen of blood, saliva, or tissue within 14 days. The following is a list of eligible charges: first degree murder; home invasion; predatory criminal sexual assault of a child; aggravated criminal sexual assault; or criminal sexual assault. The new provision mirrors the procedure that happens in Federal Court.
The Illinois Department of State Police provides or contracts out all equipment and instructions necessary for the collection of blood, tissue, and saliva specimens. Blood can only be drawn by a physician authorized to practice medicine, a registered nurse or other qualified person trained in venipuncture. Only a person trained in the instructions promulgated by the Illinois State Police on collecting saliva and tissue may collect saliva and tissue.
The genetic marker grouping analysis information obtained is confidential and is only released to authorized persons. The information obtained 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, or (vi) identifying and assisting in the prosecution of a person who is suspected of committing a qualified act. All information obtained is maintained in a single State data base, which may be uploaded into a national database, and which information may be subject to expungement.
All samples in the database can be used to check against unsolved crimes. The detention, arrest, or conviction of a person based upon a database match or database information is not invalidated if it is determined that the specimen was obtained or placed in the database by mistake.
A person who intentionally uses genetic marker grouping analysis information, or any other information derived from a DNA specimen, beyond the authorized use, or any other Illinois law, is guilty of a Class 4 felony, and is subject to a minimum fine of $5,000. Attorneys will want to verify that a DNA match in their cases was obtained by authorized means.
The Department of State Police, the Division of Forensic Services, may not contract out forensic testing for the purpose of an active investigation or a matter pending before a court without the written consent of the prosecuting agency. This includes the use of forensic databases and databanks, including DNA, firearm, fingerprint databases, and expert testimony. If the testing or conclusions are not done by the above listed agencies, you should request a copy of the written consent.
There are ways to remove the DNA from the database. If there is a reversal of conviction based on actual innocence, or of the granting of a pardon and that pardon specifically states that the reason for the pardon is the actual innocence, the DNA record shall be expunged from the DNA identification index, destroyed, and a letter is to be sent to the court verifying that the expungement is completed. For specimens required to be collected prior to conviction, unless the individual has other charges or convictions that require submission of a specimen, the DNA record for an individual shall be expunged from the DNA identification databases and the specimen destroyed upon receipt of a certified copy of a final court order for each charge against an individual in which the charge has been dismissed, resulted in acquittal, or that the charge was not filed within the applicable time period, and a letter is to be sent to the court verifying that the expungement is completed. Attorneys will want to follow up after a case has been resolved to make sure this procedure has been followed. ■