NEBRASKA

NEBRASKA

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4101 (2001)
§ 29-4101. Act, how cited

Sections 29-4101 to 29-4115 shall be known and may be cited as the DNA Detection of Sexual and Violent Offenders Act.

HISTORY: Laws 1997, LB 278, § 1.

NOTES:
EFFECTIVE DATE: September 13, 1997.

OPINIONS OF THE ATTORNEY GENERAL

ANALYSIS
Applicability

APPLICABILITY
The DNA Detection of Sexual and Violent Perpetrators [Offenders] Act does not apply to inmates who are incarcerated and serving time for committing a violent or sexual offense under the previous Criminal Code., i.e. prior to 1979. 1999 Op. Att'y Gen. No. 49.

NOTES APPLICABLE TO ENTIRE CHAPTER

CROSS REFERENCES.
Constitutional provisions:
Board of Pardons, see Article IV, § 13, Constitution of Nebraska, and § 83-1,126.
Board of Parole, see Article IV, § 13, Constitution of Nebraska, and § 83-188.
Habeas corpus, see Article I, § 8, Constitution of Nebraska.
Rights of accused:
Appear and defend, see Article I, § 11, Constitution of Nebraska
Bail, see Article I, § 9, Constitution of Nebraska.
Compel attendance of witnesses, see Article I, § 11, Constitution of Nebraska.
Copy of accusation, see Article I, § 11, Constitution of Nebraska.
Double jeopardy, see Article I, section 12, Constitution of Nebraska.
Evidence against self, not compelled to give, see Article I, § 12, Constitution of Nebraska.
Forfeiture of estate, forbidden, see Article I, § 15, Constitution of Nebraska.
Impartial jury, see Article I, § 11, Constitution of Nebraska.
Indictment or information, see Article I, § 10, Constitution of Nebraska.
Punishment, not cruel or unusual, see Article I, § 9, Constitution of Nebraska.
Right of appeal, felony cases, see Article I, § 23, Constitution of Nebraska.
Self-incrimination, privilege against, see Article I, section 12, Constitution of Nebraska.
Speedy public trial, see Article I, § 11, Constitution of Nebraska.
Suspension of sentence, capital cases, see Article I, § 23, Constitution of Nebraska.
Treason, requirements to convict, see Article I, § 14, Constitution of Nebraska.
Search and seizure, unreasonable, forbidden, see Article I, § 7, Constitution of Nebraska.
Contempt of court, prosecution, see § 25-2122.
Penal and correctional institutions, see Chapter 83, article 4.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4102 (2001)
§ 29-4102. Legislative findings

The Legislature finds that DNA data banks are an important tool in criminal investigations, in the exclusion of individuals who are the subject of criminal investigations or prosecutions, and in deterring and detecting recidivist acts. Several states have enacted laws requiring persons convicted of certain crimes, especially sex offenses, to provide genetic samples for DNA typing tests. Moreover, it is the policy of this state to assist federal, state, and local criminal justice and law enforcement agencies in the identification and detection of individuals in criminal investigations. It is in the best interest of this state to establish a State DNA Data Base for DNA records and a State DNA Sample Bank as a repository for DNA samples from individuals convicted of felony sex offenses and other specified offenses.

HISTORY: Laws 1997, LB 278, § 2.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4103 (2001)
§ 29-4103. Terms, defined

For purposes of the DNA Detection of Sexual and Violent Offenders Act:

(1) Combined DNA Index System means the Federal Bureau of Investigation's national DNA identification index system that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories;

(2) DNA means deoxyribonucleic acid which is located in the cells and provides an individual's personal genetic blueprint. DNA encodes genetic information that is the basis of human heredity and forensic identification;

(3) DNA record means the DNA identification information stored in the State DNA Data Base or the Combined DNA Index System which is derived from DNA typing test results;

(4) DNA sample means a blood or tissue sample provided by any person with respect to offenses covered by the DNA Detection of Sexual and Violent Offenders Act for analysis or storage, or both;

(5) DNA typing tests means the laboratory procedures which evaluate the characteristics of a DNA sample which are of value in establishing the identity of an individual;

(6) Felony sex offense means a felony offense, or an attempt, conspiracy, or solicitation to commit a felony offense, under any of the following:

(a) Kidnapping of a minor pursuant to section 28-313, except when the person is the parent of the minor and was not convicted of any other offense in this subdivision;

(b) Incest of a minor pursuant to section 28-703;

(c) Sexual assault in the first or second degree pursuant to section 28-319 or 28-320;

(d) Sexual assault of a child pursuant to section 28-320.01;

(e) Sexual assault of a vulnerable adult pursuant to subdivision (1) (c) of section 28-386; and

(f) False imprisonment of a minor in the first degree pursuant to section 28-314, except when the person is the parent of the minor and was not convicted of any other offense in this subdivision;

(7) Law enforcement agency includes a police department, town marshal, county sheriff, and the Nebraska State Patrol;

(8) Other specified offense means an offense, or an attempt, conspiracy, or solicitation to commit an offense, under any of the following:

(a) Murder in the first degree pursuant to section 28-303;

(b) Murder in the second degree pursuant to section 28-304;

(c) Manslaughter pursuant to section 28-305; or

(d) Stalking pursuant to sections 28-311.02 to 28-311.05; and

(9) Released means any release, parole, furlough, work release, prerelease, or release in any other manner from a prison, jail, or any other detention facility or institution.

HISTORY: Laws 1997, LB 278, § 3.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4104 (2001)
§ 29-4104. State DNA Data Base; established; contents; Nebraska State Patrol; duties

The State DNA Data Base is established. The Nebraska State Patrol shall administer the State DNA Data Base and shall provide DNA records to the Federal Bureau of Investigation for storage and maintenance in the Combined DNA Index System. The patrol shall provide for liaison with the Federal Bureau of Investigation and other law enforcement agencies in regard to the state's participation in the Combined DNA Index System. The State DNA Data Base shall store and maintain DNA records related to:

(1) Forensic casework;

(2) Convicted offenders required to provide a DNA sample under the DNA Detection of Sexual and Violent Offenders Act; and

(3) Anonymous DNA records used for research or quality control.

HISTORY: Laws 1997, LB 278, § 4.

NOTES:
EFFECTIVE DATE: September 13, 1997.

RESEARCH REFERENCES

ALR.
Validity, construction, and operation of state DNA database statutes. 76 ALR5th 239.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4105 (2001)
§ 29-4105. DNA samples and records; access restrictions

(1) The Nebraska State Patrol shall prescribe procedures to be used in the collection, submission, identification, analysis, storage, and disposition of DNA samples and DNA records under the DNA Detection of Sexual and Violent Offenders Act. These procedures shall include quality assurance guidelines for laboratories which submit DNA records to the State DNA Data Base. The State DNA Data Base shall be compatible with the procedures specified by the Federal Bureau of Investigation, including the use of comparable test procedures, laboratory equipment, supplies, and computer software. The DNA records shall be securely stored in the State DNA Data Base and retained in a manner consistent with the procedures established by the Federal Bureau of Investigation.

(2) The Nebraska State Patrol may contract with the University of Nebraska Medical Center to establish the State DNA Sample Bank at the medical center and for DNA typing tests. The State DNA Sample Bank shall serve as the repository of DNA samples collected under the act. The University of Nebraska Medical Center in contracting under the act is subject to the same restrictions and requirements of the act, insofar as applicable, as the Nebraska State Patrol, as well as any additional restrictions imposed by the patrol.

(3) The DNA samples and DNA records shall only be used by the Nebraska State Patrol to create a separate population data base comprised of DNA records obtained under the act after all personal identification is removed. The patrol may share or disseminate the population data base with other law enforcement agencies or forensic DNA laboratories which assist the patrol with statistical data bases. The population data base may be made available to and searched by other agencies participating in the Combined DNA Index System.

HISTORY: Laws 1997, LB 278, § 5.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4106 (2001)
§ 29-4106. Person subject to DNA sample

(1) A person who is convicted of a felony sex offense or other specified offense on or after September 13, 1997, shall have a DNA sample drawn:

(a) Upon intake to a prison, jail, or other detention facility or institution to which such person is sentenced. If the person is already confined at the time of sentencing, the person shall have a DNA sample drawn immediately after the sentencing. Such DNA samples shall be drawn at the place of incarceration or confinement. Such person shall not be released unless and until a DNA sample has been drawn; or

(b) As a condition for any sentence which will not involve an intake into a prison, jail, or other detention facility or institution. Such DNA samples shall be drawn at a detention facility or institution as specified by the court. Such person shall not be released unless and until a DNA sample has been drawn.

(2) A person who has been convicted of a felony sex offense or other specified offense before September 13, 1997, and who is still serving a term of confinement for such offense on September 13, 1997, shall not be released prior to the expiration of his or her maximum term of confinement unless and until a DNA sample has been drawn.

HISTORY: Laws 1997, LB 278, § 6.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4107 (2001)
§ 29-4107. DNA samples; persons authorized to obtain samples; immunity

(1) Only individuals (a) who are physicians or registered nurses, (b) who are trained to withdraw human blood for scientific or medical purposes and are obtaining blood specimens while working under orders of or protocols and procedures approved by a physician, registered nurse, or other independent health care practitioner licensed to practice by the state if the scope of practice of that practitioner permits the practitioner to obtain blood specimens, or (c) who are both employed by a licensed institution or facility and have been trained to withdraw human blood for scientific or medical purposes shall draw a DNA sample under the DNA Detection of Sexual and Violent Offenders Act. In addition to the DNA sample, one thumb print or fingerprint shall be taken from the person from whom the DNA sample is being drawn for the exclusive purpose of verifying the identity of such person. The DNA sample and the thumb print or fingerprint shall be delivered to the Nebraska State Patrol within five working days after drawing the sample.

(2) A person authorized to draw DNA samples under this section is not criminally liable for drawing a DNA sample and transmitting DNA records pursuant to the act if he or she performs these activities in good faith and is not civilly liable for such activities if he or she performed such activities in a reasonable manner according to generally accepted medical and other professional practices.

HISTORY: Laws 1997, LB 278, § 7; Laws 2000, LB 151, § 1.

NOTES:
EFFECT OF AMENDMENTS.
Laws 2000, LB 151, effective Feb. 16, 2000, in (1), substituted "one thumb print or fingerprint" for "a full set of fingerprints," "thumb print or fingerprint" for "set of fingerprints," and "five working days" for "forty-eight hours."

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4108 (2001)
§ 29-4108. DNA samples and DNA records; confidentiality

(1) All DNA samples and DNA records submitted pursuant to the DNA Detection of Sexual and Violent Offenders Act are confidential except as otherwise provided in the act. The Nebraska State Patrol shall make DNA records in the State DNA Data Base available:

(a) To law enforcement agencies and forensic DNA laboratories which serve such agencies; and

(b) Upon written or electronic request and in furtherance of an official investigation of a criminal offense or offender or suspected offender.

(2) The Nebraska State Patrol shall adopt and promulgate rules and regulations governing the methods of obtaining information from the State DNA Data Base and the Combined DNA Index System and procedures for verification of the identity and authority of the requester.

(3) The Nebraska State Patrol may, for good cause shown, revoke or suspend the right of a forensic DNA laboratory in this state to have access to or submit records to the State DNA Data Base.

(4) For purposes of this subsection, person means a law enforcement agency, the Federal Bureau of Investigation, any forensic DNA laboratory, or person. No records or DNA samples shall be provided to any person unless such person enters into a written agreement with the Nebraska State Patrol to comply with the provisions of section 29-4109 relative to expungement, when notified by the Nebraska State Patrol that expungement has been granted. Every person shall comply with the provisions of section 29-4109 within ten calendar days of receipt of such notice and certify in writing to the Nebraska State Patrol that such compliance has been effectuated. The Nebraska State Patrol shall provide notice of such certification to the person who was granted expungement.

HISTORY: Laws 1997, LB 278, § 8.

NOTES:
EFFECTIVE DATE: September 13, 1997.

EDITOR'S NOTES.
This section reflects 1998 changes made by the revisor.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4109 (2001)
§ 29-4109. DNA record; expungement; procedure

A person whose DNA record has been included in the State DNA Data Base pursuant to the DNA Detection of Sexual and Violent Offenders Act may request expungement on the grounds that the conviction on which the authority for including such person's DNA record was based has been reversed and the case dismissed. The Nebraska State Patrol shall purge all DNA records and identifiable information in the data base pertaining to the person and destroy all DNA samples from the person upon receipt of a written request for expungement pursuant to this section and a certified copy of the final court order reversing and dismissing the conviction.

Within ten calendar days of granting expungement, the Nebraska State Patrol shall provide written notice of such expungement pursuant to subsection (4) of section 29-4108, to any person to whom DNA records and samples have been made available. The Nebraska State Patrol shall establish procedures for providing notice of certification of expungement to the person who was granted expungement.

HISTORY: Laws 1997, LB 278, § 9.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4110 (2001)
§ 29-4110. Unlawfully obtaining or possessing DNA samples or records; penalty

(1) Any person who has possession of or access to individually identifiable DNA samples or DNA records in the State DNA Data Base or in the State DNA Sample Bank shall not disclose such samples or records in any manner to any person or agency not authorized to receive them knowing that such person or agency is not authorized to receive them.

(2) No person shall obtain individually identifiable DNA samples or DNA records from the State DNA Data Base or the State DNA Sample Bank without authorization to do so. Any person who knowingly violates this subsection is guilty of a Class III misdemeanor.

HISTORY: Laws 1997, LB 278, § 10.

NOTES:
EFFECTIVE DATE: September 13, 1997.

EDITOR'S NOTES.
This section reflects 1998 changes made by the revisor.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4111 (2001)
§ 29-4111. Unlawful disclosure for pecuniary gain; penalty; attorney's fees

(1) Any person who has possession of or access to individually identifiable DNA samples or DNA records contained in the State DNA Data Base or in the State DNA Sample Bank and who for pecuniary gain for such person or for any other person discloses such samples and records in any manner to any person or agency not authorized to receive them is guilty of a Class III misdemeanor.

(2) Any person aggrieved by a knowing violation of this section has the substantive right to bring an action for damages for such violation in a court of competent jurisdiction. A person found by the court to have been aggrieved by a knowing violation of this section may receive damages of not less than one hundred dollars for each violation and may recover the reasonable costs of the litigation and attorney's fees.

HISTORY: Laws 1997, LB 278, § 11.

NOTES:
EFFECTIVE DATE: September 13, 1997.

EDITOR'S NOTES.
This section reflects 1998 changes made by the revisor.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4112 (2001)
§ 29-4112. Injunction

The Nebraska State Patrol or any other aggrieved individual or agency may institute an action in a court of proper jurisdiction against any person, including law enforcement agencies, to enjoin such person or agency from violating the DNA Detection of Sexual and Violent Offenders Act.

HISTORY: Laws 1997, LB 278, § 12.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4113 (2001)
§ 29-4113. DNA samples; additional offenses; Nebraska State Patrol; duties

The Nebraska State Patrol may recommend to the Legislature that the Legislature enact legislation for the inclusion of additional offenses for which DNA samples shall be taken and otherwise subjected to the DNA Detection of Sexual and Violent Offenders Act. In determining whether to recommend additional offenses, the Nebraska State Patrol shall consider those offenses for which DNA testing will have a substantial impact on the detection and identification of sexual offenders and violent offenders.

HISTORY: Laws 1997, LB 278, § 13.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

CHAPTER 29. CRIMINAL PROCEDURE
ARTICLE 41. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT

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R.R.S. Neb. § 29-4114 (2001)
§ 29-4114. Rules and regulations

The Nebraska State Patrol shall adopt and promulgate rules and regulations to carry out the DNA Detection of Sexual and Violent Offenders Act.

HISTORY: Laws 1997, LB 278, § 14.

NOTES:
EFFECTIVE DATE: September 13, 1997.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading.

NEBRASKA ADVANCE LEGISLATIVE SERVICE
STATENET
Copyright © 2000 by Information for Public Affairs, Inc.

NEBRASKA 96TH LEGISLATURE -- SECOND REGULAR SESSION

LEGISLATIVE BILL 151

1999 Neb. ALS 151; 1999 Neb. Laws 151; 1999 Neb. LB 151
SYNOPSIS: AN ACT relating to the DNA Detection of Sexual and Violent Offenders Act; to amend section 29-4107, Revised Statutes Supplement, 1998; to change provisions relating to DNA samples and fingerprints; to repeal the original section; 5 and to declare an emergency.

NOTICE:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]
[D> Text within these symbols is deleted <D]

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Be it enacted by the people of the State of Nebraska,

[*1] Section 1. Section 29-4107, Revised Statutes Supplement, 1998, is amended to read:

29-4107. (1) Only individuals (a) who are physicians or registered nurses, (b) who are trained to withdraw human blood for scientific or medical purposes and are obtaining blood specimens while working under orders of or protocols and procedures approved by a physician, registered nurse, or other independent health care practitioner licensed to practice by the state if the scope of practice of that practitioner permits the practitioner to obtain blood specimens, or (c) who are both employed by a licensed institution or facility and have been trained to withdraw human blood for scientific or medical purposes shall draw a DNA sample under the DNA Detection of Sexual and Violent Offenders Act. In addition to the DNA sample, [D> a full set of fingerprints <D] [A> ONE THUMB PRINT OR FINGERPRINT <A] shall be taken from the person from whom the DNA sample is being drawn for the exclusive purpose of verifying the identity of such person. The DNA sample and the [D> set of fingerprints <D] [A> THUMB PRINT OR FINGERPRINT <A] shall be delivered to the Nebraska State Patrol within [D> forty-eight hours <D] [A> FIVE WORKING DAYS <A] after drawing the sample. (2) A person authorized to draw DNA samples under this section is not criminally liable for drawing a DNA sample and transmitting DNA records pursuant to the act if he or she performs these activities in good faith and is not civilly liable for such activities if he or she performed such activities in a reasonable manner according to generally accepted medical and other professional practices.

[*2] Sec. 2. Original section 29-4107, Revised Statutes Supplement, 1998, is repealed.

[*3] Sec. 3. Since an emergency exists, this act takes effect when passed and approved according to law.

HISTORY:
Approved by the Governor on February 15, 2000

SPONSOR:
Thompson

NEVADA

TITLE 14. PROCEDURE IN CRIMINAL CASES
CHAPTER 176. JUDGMENT AND EXECUTION
SENTENCE AND JUDGMENT
GENETIC MARKER TESTING

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Nev. Rev. Stat. Ann. § 176.0911 (2001)
§ 176.0911. "CODIS" defined

As used in NRS 176.0911 to 176.0917, inclusive, unless the context otherwise requires, "CODIS" means the Combined DNA Indexing System operated by the Federal Bureau of Investigation.

HISTORY: 1997, ch. 451, § 83.3, p. 1668.

NOTES:
EFFECTIVE DATE. --This section is effective July 1, 1997.

TITLE 14. PROCEDURE IN CRIMINAL CASES
CHAPTER 176. JUDGMENT AND EXECUTION
SENTENCE AND JUDGMENT
GENETIC MARKER TESTING

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Nev. Rev. Stat. Ann. § 176.0913 (2001)
§ 176.0913. Samples of blood taken from defendant; identifying information submitted to central repository; costs

1. If a defendant is convicted of an offense listed in subsection 4, the court, at sentencing, shall order that:

(a) The name, social security number, date of birth and any other information identifying the defendant be submitted to the central repository for Nevada records of criminal history; and

(b) Samples of blood be obtained from the defendant pursuant to the provisions of this section and that the samples be used for an analysis to determine the genetic markers of the blood.

2. If the defendant is committed to the custody of the department of prisons, the department of prisons shall arrange for the samples of blood to be obtained from the defendant. The department of prisons shall provide the samples of blood to the forensic laboratory that has been designated by the county in which the defendant was convicted to conduct or oversee genetic marker testing for the county pursuant to NRS 176.0917.

3. If the defendant is not committed to the custody of the department of prisons, the division shall arrange for the samples of blood to be obtained from the defendant. The division shall provide the samples of blood to the forensic laboratory that has been designated by the county in which the defendant was convicted to conduct or oversee genetic marker testing for the county pursuant to NRS 176.0917. Any cost that is incurred to obtain the samples of blood from the defendant pursuant to this subsection is a charge against the county in which the defendant was convicted and must be paid as provided in NRS 176.0915.

4. The provisions of subsection 1 apply to a defendant who is convicted of any of the following offenses:

(a) A crime against a child as defined in NRS 179D.210.

(b) A sexual offense as defined in NRS 179D.410.

(c) Murder, manslaughter or any other unlawful killing pursuant to NRS 200.010 to 200.260, inclusive.

(d) Mayhem pursuant to NRS 200.280.

(e) Administering poison or another noxious or destructive substance or liquid with intent to cause death pursuant to NRS 200.390.

(f) Battery with intent to commit a crime pursuant to NRS 200.400.

(g) Battery which is committed with the use of a deadly weapon or which results in substantial bodily harm pursuant to NRS 200.481.

(h) Abuse or neglect of an older person pursuant to NRS 200.5099.

(i) A second or subsequent offense for stalking pursuant to NRS 200.575.

(j) Burglary pursuant to NRS 205.060.

(k) Invasion of the home pursuant to NRS 205.067.

(l) An attempt to commit an offense listed in this subsection.

HISTORY: 1989, ch. 168, § 1, p. 376; 1995, ch. 256, § 5, p. 414.; 1997, ch. 451, § 84, p. 1669.

NOTES:
EDITOR'S NOTE. --This section was formerly compiled as NRS 176.111.

EFFECTIVE DATE. --The 1997 amendment is effective July 1, 1997.

EFFECT OF AMENDMENT. --The 1997 amendment rewrote the section.

CASE NOTES

CONSTITUTIONALITY. --This section does not violate the Fourth Amendment because the State's interest in solving crimes outweighs both the convict's diminished expectation of privacy and the minimally intrusive nature of the blood draw. Gaines v. State, 116 Nev. --, 998 P.2d 166 (Nev. 2000), cert. denied, -- U.S. --, 121 S. Ct. 138, 148 L. Ed. 2d 90 (2000).
Applying a rational basis standard, the court concluded that this section does not offend notions of equal protection because of the existence of a rational basis for requiring genetic marker testing, namely the apprehension of repeat and violent offenders. Gaines v. State, 116 Nev. --, 998 P.2d 166 (Nev. 2000), cert. denied, -- U.S. --, 121 S. Ct. 138, 148 L. Ed. 2d 90 (2000).
This section does not offend the Due Process Clause given that the proper taking of a blood sample for purposes of a criminal investigation does not shock the conscience or offend one's sense of justice; accordingly, under this approach, the Due Process Clause is not implicated because the blood test is routine, and therefore does not concern a fundamental right. Gaines v. State, 116 Nev. --, 998 P.2d 166 (Nev. 2000), cert. denied, -- U.S. --, 121 S. Ct. 138, 148 L. Ed. 2d 90 (2000).
A blood test properly performed by a medical provider is not barbarous nor does it involve wanton physical punishment, therefore, the blood draw authorized by this section did not violate the Eighth Amendment. Gaines v. State, 116 Nev. --, 998 P.2d 166 (Nev. 2000), cert. denied, -- U.S. --, 121 S. Ct. 138, 148 L. Ed. 2d 90 (2000).
This section is not overbroad given that its plain language limits the purpose of testing to identification and defendant's contentions that State might abuse the genetic marker data were merely speculation and conjecture as no evidence was provided to support that argument. Gaines v. State, 116 Nev. --, 998 P.2d 166 (Nev. 2000), cert. denied, -- U.S. --, 121 S. Ct. 138, 148 L. Ed. 2d 90 (2000).

APPLICATION OF THIS SECTION IS NOT LIMITED TO SEXUAL OFFENDERS. --This section unambiguously requires genetic marker testing for several types of non-sexual offenses to include burglary; furthermore, the legislative history indicated that the legislature intended to expand the list of crimes for which DNA sampling and testing were required to include certain violent crimes like burglary. Gaines v. State, 116 Nev. --, 998 P.2d 166 (Nev. 2000), cert. denied, -- U.S. --, 121 S. Ct. 138, 148 L. Ed. 2d 90 (2000).

RESEARCH REFERENCES
Validity, construction, and operation of state DNA database statutes. 76 A.L.R.5th 239.
Authentication of blood sample taken from human body for purposes other than determining blood alcohol content. 77 A.L.R.5th 201.

LEGAL PERIODICALS
Criminal Procedure; Sex Offenders--Blood and Saliva Test, 1989 Pac. L.J. Rev. Nev. Legis. 89.

NEW HAMPSHIRE

TITLE LXII. CRIMINAL CODE
CHAPTER 632-A. SEXUAL ASSAULT AND RELATED OFFENSES
DNA TESTING OF SEXUAL OFFENDERS

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RSA 632-A:20 (2000)
§ 632-A:20. Definitions

In this subdivision:

I. "CODIS" means the Combined DNA Index System, the FBI's national DNA identification index system.

II. "Department" means the department of safety.

III. "Division" means the division of state police, department of safety.

IV. "DNA" means deoxyribonucleic acid.

V. "DNA record" means the DNA identification information stored in the state DNA database or CODIS for the purposes of generating investigative leads or supporting statistical interpretation of DNA test results. The DNA record is the objective form of the DNA analysis test and may include numerical representation of DNA fragment lengths, digital images of autoradiographs, discrete allele assignment numbers, and similar characteristics obtained from a DNA sample which are of value in establishing the identity of individuals. A DNA record may not specify the presence, absence, or alteration of any gene or chromosome.

VI. "DNA sample" means a blood, tissue, or hair follicle sample provided by any person or submitted to the division pursuant to this subdivision for analysis or storage or both.

VII. "FBI" means the Federal Bureau of Investigation.

VIII. "Juvenile sexual offender" means a person who has been found delinquent because of actions which, if the person were an adult, would be crimes under subparagraph IX(a).

IX. "Sexual offender" means a person who has been convicted of any violation of:

(a) RSA 632-A:2, RSA 632-A:3, or RSA 632-A:4; or

(b) A law of another state or the federal government reasonably equivalent to a violation listed in subparagraph (a).

HISTORY: 1996, 177:1, eff. Aug. 8, 1996.

NOTES APPLICABLE TO ENTIRE TITLE

CROSS REFERENCES
Appeals from convictions in municipal or district court, see RSA 599.
Arrests in criminal cases, see RSA 594.
Bail and recognizances, see RSA 597.
Depositions in criminal cases, see RSA 517:13 et seq.
Discovery in criminal cases, see RSA 604:1-a.
Extradition, see RSA 612.
Fingerprinting and measuring of defendants, see RSA 593.
Fresh pursuit, see RSA 614.
Immunity in criminal cases, see RSA 516:34.
Indictments, information, and complaints, see RSA 601.
Jurisdiction and procedure generally, see RSA 592-A.
Pleas and refusal to plead, see RSA 605.
Preliminary examination of accused, see RSA 596-A.
Proceedings in cases of willful trespass, see RSA 539.
Representation of indigent defendants, see RSA 604-A.
Rights of accused, see New Hampshire Constitution, Part 1, Article 15.
Trial of criminal cases, see RSA 606.
Venue in criminal cases, see RSA 602:1.

NOTES APPLICABLE TO ENTIRE CHAPTER

CROSS REFERENCES
Annulment of record of conviction for offense under this chapter, see RSA 651:5.
Confidential communications between victims of sexual assault and counselors, see RSA 173-C.
Involuntary admission for persons charged with felonious sexual assault found not competent to stand trial, see RSA 171-B.
Parole of prisoner convicted of psycho-sexual murder, see RSA 651-A:8.
Physical force in defense of a person, see RSA 627:4.
Testimony of minor in civil proceedings to recover damages on behalf of minor for abuse or assault, see RSA 516:25-a.

ANNOTATIONS

CITED. Cited in State v. Cressey (1993) 137 N.H. 402, 628 A.2d 696.

LIBRARY REFERENCES

NEW HAMPSHIRE PRACTICE
2 N.H.P. Criminal Practice & Procedure §§ 806, 839, 846, 848, 852, 1040.
For article, "Repressed Memory or False Memory: New Hampshire Courts Consider the Dispute," 35 N.H.B.J. 51 (1994).

CJS
Rape § 1 et seq.

ALR
Admissibility, in prosecution for sex-related offense, of results of tests on semen or seminal fluids. 75 ALR4th 897.
Assault and battery: sexual nature of physical contact as aggravating offense. 63 ALR3d 225.
Fact that murder-rape victim was dead at time of penetration as affecting conviction for rape. 76 ALR4th 1147.
Mistake or lack of information as to victim's age, as defense to statutory rape. 44 ALR3d 1434; 46 ALR5th 499.
Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution. 45 ALR4th 310.
Prosecution of female as principal for rape. 67 ALR4th 1127.
Remoteness in time of other similar offenses committed by accused as affecting admissibility of evidence thereof in prosecution for sex offenses. 88 ALR3d 8.
Time element as affecting admissibility of statement or complaint made by victim of sex crime as res gestae, spontaneous exclamation, or excited utterance. 89 ALR3d 102.
Validity of statute making sodomy a criminal offense. 20 ALR4th 1009.
What constitutes offense of "sexual battery". 87 ALR3d 1250.

NOTES APPLICABLE TO ENTIRE HEADING

APPLICABILITY OF ENACTMENT. 1996, 177:3, eff. Aug. 2, 1996, provided that the enactment of this subdivision, comprising RSA 632-A:20-632-A:24, by 1996, 177:1 shall apply to crimes committed after August 2, 1996 and to persons incarcerated in state or county corrections facilities as of August 2, 1996.

TITLE LXII. CRIMINAL CODE
CHAPTER 632-A. SEXUAL ASSAULT AND RELATED OFFENSES
DNA TESTING OF SEXUAL OFFENDERS

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RSA 632-A:21 (2000)
§ 632-A:21. DNA Analysis Required

I. Before the release of any sexual offender after conviction, or of any juvenile sexual offender after finding of delinquency, whether on probation, conditional or unconditional release, completion of sentence, or release for any other reason, such person shall have a blood sample taken for DNA analysis to determine identification characteristics specific to the person.

II. The analysis shall be performed under the direction of the division, following procedures in conformance with the federal "DNA Identification Act of 1991". Identifying characteristics of the resulting DNA profile shall be stored and maintained by the division in a DNA database compatible with the CODIS system. Information in the database shall be made available only as provided in RSA 632-A:22.

III. The division shall prescribe procedures compatible with the Federal Bureau of Investigation's requirements for the CODIS program, to be used in the collection, submission, identification, analysis, storage and disposition of DNA samples and DNA records obtained pursuant to this subdivision.

IV. The division may contract with third parties for the purposes of this subdivision. Any DNA sample sent to third parties for analysis shall be coded to maintain confidentiality concerning the donor of the sample.

V. A certificate and the results of the analysis shall be admissible in any court as evidence of the facts stated in the analysis.

HISTORY: 1996, 177:1, eff. Aug. 2, 1996.

NOTES:
REFERENCES IN TEXT. The "DNA Identification Act of 1991", referred to in paragraph II, is apparently a reference to the DNA Identification Act of 1994, and is principally classified to 42 U.S.C. §§ 3751, 3753, 3793, 3796kk-1 et seq., 3797, and 1431 et seq.

LIBRARY REFERENCES

ALR
Validity, construction, and operation of state DNA database statutes. 76 ALR5th 239.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading: subpart, part, article, chapter or title.

TITLE LXII. CRIMINAL CODE
CHAPTER 632-A. SEXUAL ASSAULT AND RELATED OFFENSES
DNA TESTING OF SEXUAL OFFENDERS

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RSA 632-A:22 (2000)
§ 632-A:22. Dissemination of Information in DNA Database

I. It shall be the duty of the division to receive blood samples and to analyze, classify, and store the DNA records of blood samples submitted pursuant to this subdivision, and to make such information available to federal, state, and local law enforcement officers upon request made in furtherance of an official investigation of any criminal offense. Such law enforcement officers shall use such information only for the purposes of criminal investigations and prosecutions, or as necessary to the functions of an office of chief medical examiner. A request may be made by personal contact, mail, or electronic means. The name of the person making the request and the purpose for which the information is requested shall be maintained on file with the division.

II. The commissioner of the department of safety shall adopt rules under RSA 541-A to govern the methods of obtaining information from the state DNA database and CODIS and procedures for verification of the identity and authority of the requester.

III. Upon request, a copy of the request for a search shall be furnished to any person identified and charged with an offense as the result of a search of information in the database. Only when a sample or DNA record supplied by the person making the request satisfactorily matches a profile in the database shall the existence of data in the database be confirmed or identifying information from the database be disseminated.

IV. The division shall create a separate statistical database comprised of DNA records of persons whose identities are unknown. Nothing in this subdivision shall prohibit the department from sharing or otherwise disseminating the information in the statistical database with law enforcement or criminal justice agencies within or without the state.

HISTORY: 1996, 177:1, eff. Aug. 2, 1996.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading: subpart, part, article, chapter or title.

TITLE LXII. CRIMINAL CODE
CHAPTER 632-A. SEXUAL ASSAULT AND RELATED OFFENSES
DNA TESTING OF SEXUAL OFFENDERS

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RSA 632-A:24 (2000)
§ 632-A:24. Expungement of DNA Database Records Upon Reversal or Dismissal of Conviction

I. A person whose DNA record has been included in the database pursuant to this subdivision may request expungement on the grounds that the criminal conviction on which the authority for including such person's DNA record was based has been reversed and the case dismissed. The department shall purge all records and identifiable information in the database pertaining to the person and destroy all samples from the person upon receipt of a written request for expungement pursuant to this section and a certified copy of the court order reversing and dismissing the conviction.

II. The DNA record of any juvenile sexual offender shall be maintained in the database and shall not be automatically expunged from the database upon that individual reaching the age of adulthood.

HISTORY: 1996, 177:1, eff. Aug. 2, 1996.

USER NOTE: For more generally applicable notes, see notes under the first section of this heading: subpart, part, article, chapter or title.

NEW JERSEY

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.17 (2001)
§ 53:1-20.17. Short title

This act shall be known and may be cited as the "DNA Database and Databank Act of 1994."

HISTORY: L. 1994, c. 136, § 1.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.18 (2001)
§ 53:1-20.18. Findings, declarations regarding DNA databanks

The Legislature finds and declares that DNA databanks are an important tool in criminal investigations and in deterring and detecting recidivist acts. Several states have enacted laws requiring persons convicted of certain crimes, especially serious sexual offenses, to provide genetic samples for DNA profiling. Moreover, it is the policy of this State to assist federal, state and local criminal justice and law enforcement agencies in the identification and detection of individuals who are the subjects of criminal investigations. It is therefore in the best interest of the State of New Jersey to establish a DNA database and a DNA databank containing blood samples submitted by certain serious sexual offenders. It is also in the best interest of the State of New Jersey to include in this DNA database and DNA databank blood samples submitted by certain juveniles adjudicated delinquent for certain acts, which if committed by an adult, would constitute serious sexual offenses and blood samples submitted by certain persons found not guilty by reason of insanity, or adjudicated not delinquent by reason of insanity, of certain serious sexual offenses.

HISTORY: L. 1994, c. 136, § 2; amended 1997, c. 341, § 1.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.19 (2001)
§ 53:1-20.19. Definitions regarding DNA databanks

As used in this act:

"CODIS" means the FBI's national DNA identification index system that allows the storage and exchange of DNA records submitted by State and local forensic laboratories.

"DNA" means deoxyribonucleic acid.

"DNA Record" means DNA identification information stored in the State DNA database or CODIS for the purpose of generating investigative leads or supporting statistical interpretation of DNA test results.

"DNA Sample" means a blood sample provided by any person convicted of any offense enumerated in section 4 of this act or provided by any juvenile adjudicated delinquent for an act which, if committed by an adult, would constitute any offense enumerated in section 4 of this act or submitted to the division for analysis pursuant to a criminal investigation.

"Division" means the Division of State Police in the Department of Law and Public Safety.

"FBI" means the Federal Bureau of Investigation.

"State DNA Database" means the DNA identification record system to be administered by the division which provides DNA records to the FBI for storage and maintenance in CODIS.

"State DNA Databank" means the repository of DNA samples collected under the provisions of this act.

HISTORY: L. 1994, c. 136, § 3; amended 1997, c. 341, § 2.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.21 (2001)
§ 53:1-20.21. Purposes of DNA samples

Tests shall be performed on each blood sample submitted pursuant to section 4 of this act in order to analyze and type the genetic markers contained in or derived from the DNA. Except insofar as the use of the results of these tests for such purposes would jeopardize or result in the loss of federal funding, the results of these tests shall be used for the following purposes:

a. For law enforcement identification purposes;

b. For development of a population database;

c. To support identification research and protocol development of forensic DNA analysis methods;

d. To assist in the recovery or identification of human remains from mass disasters or for other humanitarian purposes;

e. For research, administrative and quality control purposes;

f. For judicial proceedings, by order of the court, if otherwise admissible pursuant to applicable statutes or rules;

g. For criminal defense purposes, on behalf of a defendant, who shall have access to relevant samples and analyses performed in connection with the case in which the defendant is charged; and

h. For such other purposes as may be required under federal law as a condition for obtaining federal funding.

The DNA record of identification characteristics resulting from the DNA testing conducted pursuant to this section shall be stored and maintained in the State DNA database and forwarded to the FBI for inclusion in CODIS. The DNA sample itself will be stored and maintained in the State DNA databank.

HISTORY: L. 1994, c. 136, § 5.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.22 (2001)
§ 53:1-20.22. Drawing of DNA samples; conditions

Each DNA sample required to be drawn pursuant section 4 of this act from persons who are incarcerated shall be drawn at the place of incarceration. DNA samples from persons who are not sentenced to a term of confinement shall be drawn at a prison or jail unit to be specified by the sentencing court. DNA samples from persons who are adjudicated delinquent shall be drawn at a prison or jail identification and classification bureau specified by the family court. Only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, laboratory technician, phlebotomist or other health care worker with phlebotomy training shall draw any DNA sample to be submitted for analysis. No civil liability shall attach to any person authorized to draw blood by this section as a result of drawing blood from any person if the blood was drawn according to recognized medical procedures. No person shall be relieved from liability for negligence in the drawing of any DNA sample. No sample shall be drawn if the division has previously received an adequate blood sample from the convicted person or the juvenile adjudicated delinquent.

HISTORY: L. 1994, c. 136, § 6; amended 1997, c. 341, § 4.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.23 (2001)
§ 53:1-20.23. Rules; procedures

The division shall adopt rules governing the procedures to be used in the submission, identification, analysis and storage of DNA samples and typing results of DNA samples submitted under this act. The DNA sample shall be securely stored in the State databank. The typing results shall be securely stored in the State database. These procedures shall also include quality assurance guidelines to insure that DNA identification records meet audit standards for laboratories which submit DNA records to the State database. The DNA identification system established pursuant to this act shall be shall be compatible with that utilized by the FBI.

HISTORY: L. 1994, c. 136, § 7.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.24 (2001)
§ 53:1-20.24. Use of State database

a. It shall be the duty of the division to store, analyze, classify and file in the State database and with the FBI for inclusion in CODIS the DNA record of identification characteristic profiles of DNA samples submitted pursuant to section 4 of this act and to make such information available from the State database as provided in this section. The division may contract out DNA typing analysis to a qualified DNA laboratory that meets established guidelines. The results of the DNA profile of individuals in the State database shall be made available to local, State or federal law enforcement agencies, and approved crime laboratories which serve these agencies, upon written or electronic request and in furtherance of an official investigation of a criminal offense. These records shall also be available upon receipt of a valid court order issued by a judge of the Superior Court directing the division to release these results to appropriate parties not listed above. The division shall maintain a file of such court orders.

b. The division shall adopt rules governing the methods of obtaining information from the State database and CODIS and procedures for verification of the identity and authority of the requester.

c. The division shall create a separate population database comprised of records obtained pursuant to this act after all personal identification is removed. Nothing shall prohibit the division from sharing or disseminating population databases with other law enforcement agencies, and crime laboratories that serve these agencies, upon written or electronic request and in furtherance of an official investigation of a criminal offense, or other third parties deemed necessary to assist with statistical analysis of the population databases. The population database may be made available to and searched by other agencies participating in the CODIS system.

HISTORY: L. 1994, c. 136, § 8.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.25 (2001)
§ 53:1-20.25. Expungement of records from State records; conditions

a. (1) Any person whose DNA record or profile has been included in the State DNA database and whose DNA sample is stored in the State DNA databank may apply for expungement on the grounds that the conviction that resulted in the inclusion of the person's DNA record or profile in the State database or the inclusion of the person's DNA sample in the State databank has been reversed and the case dismissed. The person, either individually or through an attorney, may apply to the court for expungement of the record. A copy of the application for expungement shall be served on the prosecutor for the county in which the conviction was obtained not less than 20 days prior to the date of the hearing on the application. A certified copy of the order reversing and dismissing the conviction shall be attached to an order expunging the DNA record or profile insofar as its inclusion rests upon that conviction.

(2) Any juvenile adjudicated delinquent whose DNA record or profile has been included in the State DNA database and whose DNA sample is stored in the State DNA databank may apply for expungement on the grounds that the adjudication that resulted in the inclusion of the juvenile's DNA record or profile in the State database or the inclusion of the juvenile's DNA sample in the State databank has been reversed and the case dismissed. The juvenile adjudicated delinquent, either individually or through an attorney, may apply to the court for expungement of the record. A copy of the application for expungement shall be served on the prosecutor for the county in which the conviction was obtained not less than 20 days prior to the date of the hearing on the application. A certified copy of the order reversing and dismissing the adjudication shall be attached to an order expunging the DNA record or profile insofar as its inclusion rests upon that conviction.

(3) Any person found not guilty by reason of insanity, or adjudicated not delinquent by reason of insanity, whose DNA record or profile has been included in the State DNA database and whose DNA sample is stored in the State DNA databank may apply for expungement on the grounds that the judgment that resulted in the inclusion of the person's DNA record or profile in the State database or the inclusion of the person's DNA sample in the State databank has been reversed and the case dismissed. The person, either individually or through an attorney, may apply to the court for expungement of the record. A copy of the application of expungement shall be served on the prosecutor for the county in which the judgment was obtained not less than 20 days prior to the date of the hearing on the application. A certified copy of the order reversing and dismissing the judgment shall be attached to an order expunging the DNA record or profile insofar as its inclusion rests upon that conviction.

b. Upon receipt of an order of expungement and unless otherwise provided, the division shall purge the DNA record and all other identifiable information from the State database and the DNA sample stored in the State databank covered by the order. If the entry in the database reflects more than one conviction or adjudication, that entry shall not be expunged unless and until the person or the juvenile adjudicated delinquent has obtained an order of expungement for each conviction or adjudication on the grounds contained in subsection a. of this section. If one of the bases for inclusion in the DNA database was other than conviction or adjudication, that entry shall not be subject to expungement.

HISTORY: L. 1994, c. 136, § 9; amended 1997, c. 341, § 5.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.26 (2001)
§ 53:1-20.26. Wrongful disclosure of information

Any person who by virtue of employment, or official position, has possession of, or access to, individually identifiable DNA information contained in the State DNA database or databank and who purposely discloses it in any manner to any person or agency not entitled to receive it is guilty of a disorderly person's offense.

HISTORY: L. 1994, c. 136, § 10.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.27 (2001)
§ 53:1-20.27. Confidentiality

All DNA profiles and samples submitted to the division pursuant to this act shall be treated as confidential except as provided in section 8 of this act.

HISTORY: L. 1994, c. 136, § 11.

TITLE 53. STATE POLICE
CHAPTER 1. ORGANIZATION, OFFICERS AND PERSONNEL
ARTICLE 2. STATE BUREAU OF IDENTIFICATION

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N.J. Stat. § 53:1-20.30 (2001)
§ 53:1-20.30. Lien against property, income of offender

The State shall have a lien against the property and income of each offender for whom DNA testing is conducted pursuant to section 1 of this act. The lien when properly filed as set forth herein shall have priority over all unrecorded encumbrances except for any restitutions, assessments or fines which the offender has been sentenced to pay.

HISTORY: L. 1997, c. 51, § 2.

SENATE, NO. 2000

1998 N.J. S.N. 2000
SYNOPSIS: AN ACT making appropriations for the support of the State Government and the several public purposes for the fiscal year ending June 30, 1999 and regulating the disbursement thereof.

NOTICE:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]
[D> Text within these symbols is deleted <D]
[V> Text within these symbols is vetoed by the governor <V]

Forensic DNA Lab..... 1,200,000

NEW MEXICO

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 3. IDENTIFICATION OF CRIMINALS

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N.M. Stat. Ann. § 29-3-1 (2000)
§ 29-3-1. New Mexico state police; identification and information

A. It is the duty of the New Mexico state police to install and maintain complete systems for the identification of criminals, including the fingerprint system and the modus operandi system. The New Mexico state police shall obtain, from whatever source procurable, and shall file and preserve for record, plates, photographs, outline pictures, fingerprints, measurements, descriptions, modus operandi statements and such other information about, concerning and relating to any and all persons who have been or who shall be convicted of a felony or who shall attempt to commit a felony within this state or who are well-known and habitual criminals or who have been convicted of any of the following felonies or misdemeanors:

(1) illegally carrying, concealing or possessing a pistol or any other dangerous weapon;

(2) buying or receiving stolen property;

(3) unlawful entry of a building;

(4) escaping or aiding an escape from prison;

(5) making or possessing a fraudulent or forged check or draft;

(6) petit larceny;

(7) unlawfully possessing or distributing habit-forming narcotic drugs; and

(8) driving while under the influence of intoxicating liquor or drugs.

B. The New Mexico state police may also obtain like information concerning persons who have been convicted of violating any of the military, naval or criminal laws of the United States or who have been convicted of a crime in any other state, country, district or province, which, if committed within this state, would be a felony.

C. The New Mexico state police shall make a complete and systematic record and index of all information obtained for the purpose of providing a convenient and expeditious method of consultation and comparison.

HISTORY: Laws 1935, ch. 149, § 4; 1941 Comp., § 40-301; 1953 Comp., § 39-3-1; Laws 1977, ch. 257, § 43; 1979, ch. 202, § 36; 1997, ch. 242, § 1.

NOTES:
CROSS-REFERENCES. --For the DNA Identification Act, see Chapter 29, Article 16 NMSA 1978.

THE 1997 AMENDMENT, effective July 1, 1997, in Subsection A, deleted "such" preceding "plates" and "hereafter" following "who shall", designated the paragraphs and added Paragraph (8), in Subsection C inserted "of" following "index", and made minor stylistic changes.

AM. JUR. 2D, A.L.R. AND C.J.S. REFERENCES. --6A C.J.S. Arrest § 62.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 11A. SEX OFFENDER REGISTRATION AND NOTIFICATION

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N.M. Stat. Ann. § 29-11A-1 (2000)
§ 29-11A-1. Short title

Chapter 29, Article 11A NMSA 1978 may be cited as the "Sex Offender Registration and Notification Act".

HISTORY: Laws 1995, ch. 106, § 1; 1999, ch. 19, § 1.

NOTES:
CROSS-REFERENCES. --For the DNA Identification Act, see Chapter 29, Article 16 NMSA 1978.

THE 1999 AMENDMENT, effective July 1, 1999, substituted "Chapter 29, Article 11A NMSA 1978" for "This act" and inserted "and Notification".

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

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N.M. Stat. Ann. § 29-16-1 (2000)
§ 29-16-1. Short title

This act [29-16-1 to 29-16-13 NMSA 1978] may be cited as the "DNA Identification Act".

HISTORY: Laws 1997, ch. 105, § 1.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

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N.M. Stat. Ann. § 29-16-2 (2000)
§ 29-16-2. Purpose of act

The purpose of the DNA Identification Act [29-16-1 to 29-16-13 NMSA 1978] is to:

A. establish a DNA identification system for covered offenders; and

B. facilitate the use of DNA records by local, state and federal law enforcement agencies in the identification, detection or exclusion of persons in connection with criminal investigations.

HISTORY: Laws 1997, ch. 105, § 2.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

AM. JUR. 2D, A.L.R. AND C.J.S. REFERENCES. --Validity, construction, and operation of state DNA database statutes, 76 A.L.R.5th 239.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

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N.M. Stat. Ann. § 29-16-3 (2000)
§ 29-16-3. Definitions

As used in the DNA Identification Act [29-16-1 to 29-16-13 NMSA 1978]:

A. "administrative center" means the law enforcement agency or unit that administers and operates the DNA identification system;

B. "DNA oversight committee" means the DNA identification system oversight committee;

C. "CODIS" means the federal bureau of investigation's national DNA index system for storage and exchange of DNA records submitted by forensic DNA laboratories;

D. "covered offender" means any person convicted of a felony offense as an adult under the Criminal Code, the Motor Vehicle Code or the constitution of New Mexico or convicted as an adult pursuant to youthful offender or serious youthful offender proceedings under the Children's Code [Chapter 32A NMSA 1978];

E. "department" means the department of public safety;

F. "DNA" means deoxyribonucleic acid as the basis of human heredity;

G. "DNA identification system" means the DNA identification system established pursuant to the DNA Identification Act;

H. "DNA records" means the results of DNA testing and related information;

I. "DNA testing" means a forensic DNA analysis that includes restriction fragment length polymorphism, polymerase chain reaction or other valid methods of DNA typing performed to obtain identification characteristics of samples;

J. "fund" means the DNA identification system fund; and

K. "sample" means a sample of biological material sufficient for DNA testing.

HISTORY: Laws 1997, ch. 105, § 3.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CRIMINAL CODE. --See 30-1-1 NMSA 1978 and notes thereto.

MOTOR VEHICLE CODE. --See 66-1-1 NMSA 1978 and notes thereto.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

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N.M. Stat. Ann. § 29-16-4 (2000)
§ 29-16-4. Administrative center; powers and duties; transfer to other law enforcement agency

A. The administrative center shall be an appropriate unit of the department or such other qualified New Mexico law enforcement agency as the secretary of public safety may designate in accordance with this section.

B. The administrative center shall:

(1) establish and administer the DNA identification system. The DNA identification system shall provide for collection, storage, DNA testing, maintenance and comparison of samples and DNA records for forensic purposes. Such purposes shall include generation of investigative leads and statistical analysis of DNA profiles. Procedures used for DNA testing shall be compatible with the procedures the federal bureau of investigation has specified, including comparable test procedures, laboratory equipment, supplies and computer software. Procedures used shall meet or exceed the provisions of the federal DNA Identification Act of 1994 regarding minimum standards for state participation in CODIS, including minimum standards for the acceptance, security and dissemination of DNA records;

(2) coordinate sample collection activities;

(3) perform or contract for DNA testing;

(4) serve as a repository for samples and DNA records;

(5) act as liaison with the federal bureau of investigation for purposes of CODIS; and

(6) adopt regulations and procedures governing:

(a) sample collection;

(b) DNA testing;

(c) the DNA identification system and DNA records; and

(d) the acceptance, security and dissemination of DNA records.

C. The secretary of public safety may designate, pursuant to a joint powers agreement, the crime laboratory of the police department for the largest municipality in a class A county having a population of more than two hundred fifty thousand at the most recent federal decennial census to act as the administrative center.

D. The secretary of public safety may designate, pursuant to a joint powers agreement, any other law enforcement agency to act as administrative center upon recommendation of five voting members of the advisory committee.

HISTORY: Laws 1997, ch. 105, § 4.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

DNA IDENTIFICATION ACT. --The federal DNA Identification Act, referred to in Paragraph B(1), is codified primarily as 42 U.S.C. §§ 3796kk-1 et seq. and 14131 et seq.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

N.M. Stat. Ann. § 29-16-5 (2000)
§ 29-16-5. DNA oversight committee; created; powers and duties

A. The "DNA identification system oversight committee" is created. The DNA oversight committee shall be composed of nine voting members as follows:

(1) a scientific representative from the department crime laboratory appointed by the secretary of public safety;

(2) a scientific representative from the crime laboratory of the police department for the largest municipality in a class A county having a population of more than two hundred fifty thousand at the most recent federal decennial census;

(3) the secretary of corrections or his designated representative;

(4) the state medical investigator or his designated representative;

(5) the attorney general or his designated representative;

(6) the president of the district attorney's association or his designated representative;

(7) the chief public defender or his designated representative; and

(8) the president of the New Mexico criminal defense lawyers association or his designated representative; and

(9) the head of the administrative center or his designated representative.

B. The DNA oversight committee shall adopt rules, regulations and procedures regarding the administration and operation of the DNA identification system.

C. The administrative center shall review and make recommendations to the DNA oversight committee regarding rules, regulations and procedures for the administration and operation of the DNA identification system.

HISTORY: Laws 1997, ch. 105, § 5.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

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N.M. Stat. Ann. § 29-16-6 (2000)
§ 29-16-6. Covered offenders subject to collection of samples

Each covered offender shall provide one or more samples to the administrative center, as follows:

A. covered offenders convicted on or after the effective date of the DNA Identification Act [29-16-1 to 29-16-13 NMSA 1978] shall provide a sample at any time before release from any correctional facility or, if the covered offender is not sentenced to incarceration, before the end of any period of probation or other supervised release;

B. covered offenders incarcerated on the effective date of the DNA Identification Act shall provide a sample at any time before release from any correctional facility; and

C. covered offenders on probation or other supervised release on the effective date of the DNA Identification Act shall provide a sample before the end of any period of probation or other supervised release.

HISTORY: Laws 1997, ch. 105, § 6.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

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N.M. Stat. Ann. § 29-16-7 (2000)
§ 29-16-7. Procedures for collection of samples

A. The collection of samples pursuant to the provisions of Section 6 [29-16-6 NMSA 1978] of the DNA Identification Act shall be conducted in a medically approved manner in accordance with rules, regulations and procedures adopted by the DNA oversight committee.

B. All persons who collect samples shall be trained in procedures that meet the requirements and standards specified in Subsection A of this section.

C. All persons authorized to collect samples and their employers shall be immune from liability in any civil or criminal action with regard to the collection of samples, if the collection is performed without negligence. This subsection shall not be deemed to create any additional liability or waive any immunity of public employees under the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978].

D. Samples shall be stored in accordance with rules, regulations and procedures adopted by the administrative center.

E. DNA testing shall be performed by the administrative center or a contract facility it may designate.

F. DNA records and samples shall be securely classified and stored at the administrative center.

HISTORY: Laws 1997, ch. 105, § 7.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

N.M. Stat. Ann. § 29-16-8 (2000)
§ 29-16-8. Confidentiality; disclosure and dissemination of DNA records

A. DNA records and samples are confidential and shall not be disclosed except as authorized in the DNA Identification Act [29-16-1 to 29-16-13 NMSA 1978] pursuant to the rules and regulations developed and adopted by the DNA oversight committee.

B. The administrative center shall make DNA records available for identification, comparison and investigative purposes to local, state and federal law enforcement agencies pursuant to the rules and regulations developed and adopted by the DNA oversight committee. The administrative center may disseminate statistical or research information derived from samples and DNA testing if all personal identification is removed pursuant to the rules and regulations developed and adopted by the DNA oversight committee.

HISTORY: Laws 1997, ch. 105, § 8.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

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N.M. Stat. Ann. § 29-16-9 (2000)
§ 29-16-9. Enforcement

The attorney general or a district attorney may petition a district court for an order requiring a covered offender to:

A. provide a sample; or

B. provide a sample by alternative means if the covered offender will not cooperate.

HISTORY: Laws 1997, ch. 105, § 9.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

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N.M. Stat. Ann. § 29-16-10 (2000)
§ 29-16-10. Expungement of samples and DNA records from the DNA identification system and CODIS

A. A person may request expungement of his sample and DNA records from the DNA identification system on the grounds that the conviction that led to the inclusion of his sample and DNA records in the DNA identification system has been reversed.

B. The administrative center shall expunge a person's sample and DNA records from the DNA identification system when the person provides the administrative center with the following materials:

(1) a written request for expungement of his sample and DNA records; and

(2) a certified copy of a court order that reverses the conviction that led to the inclusion of his sample and DNA records in the DNA identification system.

C. When a person's sample and DNA records are expunged from the DNA identification system, the head of the administrative center shall ensure that the person's sample and DNA records are expunged from CODIS.

HISTORY: Laws 1997, ch. 105, § 10.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

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N.M. Stat. Ann. § 29-16-11 (2000)
§ 29-16-11. Assessment of fee

On and after the effective date of the DNA Identification Act [29-16-1 to 29-16-13 NMSA 1978], when a covered offender is convicted, the court shall assess a fee of one hundred dollars ($100) in addition to any other fee, restitution or fine. The fee shall be deposited in the fund.

HISTORY: Laws 1997, ch. 105, § 11.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

N.M. Stat. Ann. § 29-16-12 (2000)
§ 29-16-12. Penalty

A. Any person who by virtue of his employment or official position possesses or has access to samples or DNA records and who willfully discloses any of them to any person or in any manner not authorized by the DNA Identification Act [29-16-1 to 29-16-13 NMSA 1978] is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

B. Any person who uses or attempts to use samples or DNA records for a purpose not authorized by the DNA Identification Act is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

C. Any person who obtains or attempts to obtain samples or DNA records for a purpose not authorized by the DNA Identification Act is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

HISTORY: Laws 1997, ch. 105, § 12.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

CHAPTER 29. LAW ENFORCEMENT
ARTICLE 16. DNA IDENTIFICATION

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

N.M. Stat. Ann. § 29-16-13 (2000)
§ 29-16-13. DNA fund created; purposes

A. The "DNA identification system fund" is created in the state treasury.

B. The fund shall consist of all money received by appropriation, gift or grant, all money collected pursuant to Section 11 [29-16-11 NMSA 1978] of the DNA Identification Act and all investment income from the fund.

C. Money and investment income in the fund at the end of any fiscal year shall not revert to the general fund but shall remain in the fund.

D. Money and investment income in the fund is appropriated to the administrative center for expenditure in fiscal year 1998 and subsequent fiscal years for the purposes of the fund.

E. The fund shall be used for the purposes of the DNA Identification Act [29-16-1 to 29-16-13 NMSA 1978], including paying the expenses incurred by the administrative center and all other reasonable expenses. The administrative center may use money in the fund for loans or grants of money, equipment or personnel to any law enforcement agency, correctional facility, judicial agency, the public defender department or the office of the medical investigator, upon recommendation of the DNA oversight committee.

HISTORY: Laws 1997, ch. 105, § 13.

NOTES:
EFFECTIVE DATES. --Laws 1997, ch. 105, § 14 makes the DNA Identification Act effective July 1, 1997.

NEW MEXICO 45TH LEGISLATURE -- FIRST REGULAR SESSION

CHAPTER 29

SENATE BILL 337

2001 N.M. ALS 29; 2001 N.M. Laws 29; 2001 N.M. Ch. 29; 2001 N.M. SB 337
SYNOPSIS: AN ACT RELATING TO CRIMINAL PROCEDURE; ESTABLISHING PROCEDURES FOR THE CONSIDERATION OF DNA EVIDENCE NOT AVAILABLE AT THE TIME OF AN OFFENDER'S CRIMINAL TRIAL; ENACTING A NEW SECTION OF THE CRIMINAL PROCEDURE ACT.

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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

[*1] Section 1. A new section of the Criminal Procedure Act is enacted to read:

"NEW MATERIAL PROCEDURES FOR CONSIDERATION OF DNA EVIDENCE --
REQUIREMENTS.--

A. A person convicted of a criminal offense, who claims that DNA evidence not available at the time of his initial trial will establish his innocence, may petition the district court in which he was convicted to set aside his judgment and sentence or grant him a new trial. A copy of the petition shall be served on the district attorney for the judicial district in which the district court is located.

B. As a condition to the district court's acceptance of his petition, the petitioner shall:

(1) submit to DNA testing ordered by the district court;

(2) authorize the district attorney's use of the DNA test results to investigate all aspects of the case that the petitioner is seeking to reopen; and

(3) authorize the district attorney's use of the DNA test results to investigate or prosecute cases unrelated to the case that the petitioner is seeking to reopen.

C. The petitioner shall prove by clear and convincing evidence that:

(1) he was convicted of the criminal offense at a bench trial or a jury trial;

(2) he has no pending appeal regarding his conviction for the criminal offense;

(3) his identity was an issue during the initial trial;

(4) the evidence he wants the court to order DNA testing upon was secured and preserved by the law enforcement agency that investigated the case;

(5) the evidence he wants the court to order DNA testing upon was subject to a chain of custody sufficient to establish that it was not substituted, tampered with, replaced or altered in any material respect;

(6) the evidence he wants the court to order DNA testing upon was not tested previously because the technology for performing DNA testing was not available at the time of the petitioner's initial trial;

(7) the evidence he wants the court to order DNA testing upon will be highly likely to produce evidentiary results that would have been admissible at the petitioner's initial trial; and

(8) if the evidence he wants the court to order DNA testing upon had been admitted at the petitioner's initial trial, a reasonable judge or jury would not have been able to find him guilty beyond a reasonable doubt.

D. The district court may grant the petition and order DNA testing if the petitioner satisfies the requirements set forth in Subsection C of this section and the court finds that:

(1) the DNA test has the scientific potential to produce new, noncumulative evidence material to the petitioner's assertion of innocence; and

(2) the DNA test employs a scientific method generally accepted within the relevant scientific community.

E. The district court may impose any additional, reasonable conditions on the DNA testing to protect the state's interests in the integrity of the evidence.

F. The district court may order the petitioner to pay for the expense of the DNA testing.

G. The district court shall make specific, written findings of fact with respect to the requirements or conditions set forth in Subsections C, D and E of this section.

H. A petitioner shall file a petition pursuant to the provisions of this section prior to July 1, 2002. The district court shall not accept any petitions after that date.

I. As used in this section, "DNA" means deoxyribonucleic acid."

[*2] Section 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2001.

HISTORY:
Approved by the Governor on March 14, 2001

SPONSOR:
Sanchez M

NEW MEXICO 45TH LEGISLATURE -- FIRST REGULAR SESSION

CHAPTER 64

HOUSE BILL 2

2001 N.M. ALS 64; 2001 N.M. Laws 64; 2001 N.M. Ch. 64; 2001 N.M. HB 2
SYNOPSIS: AN ACT MAKING GENERAL APPROPRIATIONS AND AUTHORIZING EXPENDITURES BY STATE AGENCIES REQUIRED BY LAW.

NOTICE:
[V> Text within these symbols is vetoed by the governor <V]

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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

[*1] Section 1. SHORT TITLE.--This act may be cited as the "General Appropriation Act of 2001".

[*2] Section 2. DEFINITIONS.--As used in the General Appropriation Act of 2001:

[V> A. "activity" is a strategy or work process designed to achieve a common purpose with a given set of inputs, one or more of which constitute a program; <V]

B. "agency" means an office, department, agency, institution, board, bureau, commission, court, district attorney, council or committee of state government;

[V> C. "efficiency measure" is a indicator of the cost of an activity in dollars or employee hours per unit of output or outcome; <V]

D. "expenditures" means costs, expenses, encumbrances and other financing uses, other than refunds authorized by law, recognized in accordance with generally accepted accounting principles for the legally authorized budget amounts and budget period;

[V> E. "explanatory data" means information that can help users to understand reported performance measures and to evaluate the significance of underlying factors that may have affected the reported information; <V]

F. "federal funds" means any payments by the United States government to state government or agencies except those payments made in accordance with the federal Mineral Lands Leasing Act;

[V> G. "full-time equivalent" or "FTE" means one or more authorized positions that together receive compensation for not more than two thousand eighty hours worked in fiscal year 2002. The calculation of hours worked includes compensated absences but does not include overtime, compensatory time or sick leave paid pursuant to Section 10-7-10 NMSA 1978; <V]

H. "general fund" means that fund created by Section 6-4-2 NMSA 1978 and includes federal Mineral Lands Leasing Act receipts and those payments made in accordance with the federal block grant and the federal Workforce Investment Act, but excludes the general fund operating reserve and the appropriation contingency fund;

I. "interagency transfers" means revenue, other than internal service funds, legally transferred from one agency to another;

J. "internal service funds" means:

(1) revenue transferred to an agency for the financing of goods or services to another agency on a cost-reimbursement basis; and

(2) unencumbered balances in agency internal service fund accounts appropriated by the General Appropriation Act of 2001;

K. "other state funds" means:

(1) unencumbered, nonreverting balances in agency accounts, other than in internal service funds accounts, appropriated by the General Appropriation Act of 2001;

(2) all revenue available to agencies from sources other than the general fund, internal service funds, interagency transfers and federal funds; and

(3) all revenue, the use of which is restricted by statute or agreement;

[V> L. "outcome measure" is an indicator of the accomplishments or results that occur because of services provided by a program and is a measure of the actual impact or public benefit of a program; <V]

[V> M. "ouput measure" is an indicator of the physical quantity of a service or product delivered by an activity or program; <V]

[V> N. "performance measure" means a quantitative or qualitative indicator used to assess a state agency's performance; <V]

[V> O. "program" means a set of activities undertaken in accordance with a plan of action organized to realize identifiable goals and objectives based on legislative authorization; <V]

[V> P. "quality measure" is an indicator of the quality of a good or service produced and is often an indicator of the timeliness, reliability or safety of services or products produced by a program; <V]

Q. "revenue" means all money received by an agency from sources external to that agency, net of refunds and other correcting transactions, other than from issue of debt, liquidation of investments or as agent or trustee for other governmental entities or private persons;

[V> R. "target" means the expected level of performance of a program's performance measures; <V] and

S. "unforeseen federal funds" means a source of federal funds or an increased amount of federal funds that could not have been reasonably anticipated or known during the first session of the forty-fifth legislature and, therefore, could not have been requested by an agency or appropriated by the legislature.

[*3] Section 3. GENERAL PROVISIONS.--

A. Amounts set out under column headings are expressed in thousands of dollars.

B. Amounts set out under column headings are appropriated from the source indicated by the column heading. All amounts set out under the column heading "Internal Service Funds/Interagency Transfers" indicate an intergovernmental transfer and do not represent a portion of total state government appropriations. All information designated as "Totals" or "Subtotals" are provided for information and are not appropriations.

C. Amounts set out in Section 4 and Section 5 of the General Appropriation Act of 2001, or so much as may be necessary, are appropriated from the indicated source for expenditure in fiscal year 2002 for the objects expressed.

D. Unencumbered balances in agency accounts remaining at the end of fiscal year 2001 shall revert to the general fund by October 1, 2001, unless otherwise indicated in the General Appropriation Act of 2001 or otherwise provided by law.

E. Unencumbered balances in agency accounts remaining at the end of fiscal year 2002 shall revert to the general fund by October 1, 2002, unless otherwise indicated in the General Appropriation Act of 2001 or otherwise provided by law.

F. The state budget division shall monitor revenue received by agencies from sources other than the general fund and shall reduce the operating budget of any agency whose revenue from such sources is not meeting projections. The state budget division shall notify the legislative finance committee of any operating budget reduced pursuant to this subsection.

G. Except as otherwise specifically stated in the General Appropriation Act of 2001, appropriations are made in that act for the expenditures of agencies and for other purposes as required by existing law for fiscal year 2002. If any other act of the first session of the forty-fifth legislature changes existing law with regard to the name or responsibilities of an agency or the name or purpose of a fund or distribution, the appropriation made in the General Appropriation Act of 2001 shall be transferred from the agency, fund or distribution to which an appropriation has been made as required by existing law to the appropriate agency, fund or distribution provided by the new law.

[V> H. In August, October, December and May of fiscal year 2002, the department of finance and administration, in consultation with the staff of the legislative finance committee and other agencies, shall prepare and present revenue estimates to the legislative finance committee. If these revenue estimates indicate that revenues and transfers to the general fund, excluding transfers to the general fund operating reserve, the appropriation contingency fund or the state-support reserve fund, as of the end of fiscal year 2002, are not expected to meet appropriations from the general fund, then the department shall present a plan to the legislative finance committee that outlines the methods by which the administration proposes to address the deficit. <V]

I. Pursuant to Sections 6-3-23 through 6-3-25 NMSA 1978, agencies whose revenue from unforeseen federal funds, from state board of finance loans, from revenue appropriated by other acts of the legislature, or from gifts, grants, donations, bequests, insurance settlements, refunds, or payments into revolving funds which exceed specifically appropriated amounts, may request budget increases from the state budget division. If approved by the state budget division, such money is appropriated. In approving a budget increase from unforeseen federal funds, the director of the state budget division shall advise the legislative finance committee as to the source of the federal funds and the source and amount of any matching funds required.

[V> J. For fiscal year 2002, the number of permanent and term full-time equivalent positions specified for each agency shows the maximum number of employees intended by the legislature for that agency, unless another provision of the General Appropriation Act of 2001 or another act of the first session of the forty-fifth legislature provides for additional employees. <V]

[V> K. Except for gasoline credit cards used solely for operation of official vehicles and telephone credit cards used solely for official business, none of the appropriations contained in the General Appropriation Act of 2001 may be expended for payment of credit card invoices. <V]

L. To prevent unnecessary spending, expenditures from the General Appropriation Act of 2001 for gasoline for state-owned vehicles at public gasoline service stations shall be made only for self-service gasoline; provided that a state agency head may provide exceptions from the requirement to accommodate disabled persons or for other reasons the public interest may require.

M. When approving operating budgets based on appropriations in the General Appropriation Act of 2001, the state budget division is specifically authorized to approve only those budgets that are in accordance with generally accepted accounting principles for the purpose of properly classifying other financing sources and uses, including interfund, intrafund and interagency transfers.

[V> N. No money appropriated in the General Appropriation Act of 2001 shall be used to promote the legalization or decriminalization of controlled substances. <V]

Item

Performance Measures:

(a) Quality: Number of unprocessed DNA cases 125

(b) Quality: Number of unprocessed firearms cases 100

(c) Efficiency: Number of DNA cases analyzed per FTE 50

(d) Efficiency: Number of firearms cases analyzed per FTE 72

(e) Quality: Percent of misconduct cases processed within timelines 90%

(f) Efficiency: Percent difference in number of arrest records with a final disposition compared to the baseline number 20%

(3) Information technology:

The purpose of the information technology program is to ensure access to information by its customers and to provide reliable and timely information technology services to agency programs and law enforcement and other governmental agencies in their commitment to build a safer, stronger New Mexico.

NEW YORK

CRIMINAL PROCEDURE LAW
PART TWO. THE PRINCIPAL PROCEEDINGS
TITLE M. PROCEEDINGS AFTER JUDGMENT
ARTICLE 440. POST-JUDGMENT MOTIONS

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NY CLS CPL § 440.30 (2001)
§ 440.30. Motion to vacate judgment and to set aside sentence; procedure

1. A motion to vacate a judgment pursuant to section 440.10 and a motion to set aside a sentence pursuant to section 440.20 must be made in writing and upon reasonable notice to the people. Upon the motion, a defendant who is in a position adequately to raise more than one ground should raise every such ground upon which he intends to challenge the judgment or sentence. If the motion is based upon the existence or occurrence of facts, the motion papers must contain sworn allegations thereof, whether by the defendant or by another person or persons. Such sworn allegations may be based upon personal knowledge of the affiant or upon information and belief, provided that in the latter event the affiant must state the sources of such information and the grounds of such belief. The defendant may further submit documentary evidence or information supporting or tending to support the allegations of the moving papers. The people may file with the court, and in such case must serve a copy thereof upon the defendant or his counsel, if any, an answer denying or admitting any or all of the allegations of the motion papers, and may further submit documentary evidence or information refuting or tending to refute such allegations. After all papers of both parties have been filed, and after all documentary evidence or information, if any, has been submitted, the court must consider the same for the purpose of ascertaining whether the motion is determinable without a hearing to resolve questions of fact.

1-a. In cases of convictions occurring before January first, nineteen hundred ninety-six, where the defendant's motion requests the performance of a forensic DNA test on specified evidence, and upon the court's determination that any evidence containing deoxyribonucleic acid ("DNA") was secured in connection with the trial resulting in the judgment, the court shall grant the application for forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant.