Second Regular Session Sixty-fifth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 06-0757.01 Michael Dohr HOUSE BILL 06-1292 HOUSE SPONSORSHIP Stengel, SENATE SPONSORSHIP (None), House Committees Senate Committees Judiciary A BILL FOR AN ACT Concerning identity testing of offenders. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Expands DNA testing requirements to all adults convicted of a felony who are in custody or who are on parole or probation. Extends DNA testing requirements to all juveniles who are adjudicated for an offense that would constitute a felony if committed by an adult and, as a result, are committed to the department of human services or placed on probation. Requires the Colorado bureau of investigation to store the biological substance to be tested until sufficient appropriations are made for chemical testing. Permits a felon in the custody of the department of corrections to request an electronic brain wave response test to prove the felon's innocence, which test is subject to available appropriations. Creates the brain fingerprinting pilot program cash fund to pay for the electronic brain wave response test. Authorizes the fund to accept gifts, grants, and donations. Makes conforming amendments. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. 16-11-102.3, Colorado Revised Statutes, is amended to read: 16-11-102.3. Genetic testing of convicted offenders. (1) As used in this section, unless the context otherwise requires, "convicted offender" means a person who is not required to submit to a chemical testing of the person's biological substance sample to determine the genetic markers thereof pursuant to any other provision and who is convicted of, or pleads guilty to any of the following offenses: (a) An offense involving, or for which the factual basis involved, unlawful sexual behavior as defined in section 16-22-102 (9); (b) A crime of violence, as listed in section 18-1.3-406 (2), C.R.S.; (c) Second degree murder, in violation of section 18-3-103 (1), C.R.S.; (d) First degree assault, in violation of section 18-3-202 (1), C.R.S.; (e) Second degree assault, in violation of section 18-3-203 (1) (b), (1) (c), (1) (d), (1) (g), or (2) (b.5), C.R.S.; (f) Second degree kidnapping, in violation of section 18-3-302 (4), C.R.S.; (g) First degree arson, in violation of section 18-4-102 (3), C.R.S.; (h) Burglary in the first degree, in violation of section 18-4-202, C.R.S.; (i) Aggravated robbery, in violation of section 18-4-302 (4), C.R.S.; or (j) Any felony when the person was previously convicted of, or pled guilty to one or more of the offenses listed in paragraphs (a) to (i) of this subsection (1). (1.5) Subject to available appropriations, beginning March 31, 2002, every felon who is sentenced to the custody of the executive director of the department of corrections shall submit to and pay for collection and a chemical testing of a biological substance sample from the offender to determine the genetic markers thereof prior to the person's discharge or release to parole. (2) (a) (Deleted by amendment, L. 2001, p. 953, 1, effective March 31, 2002.) (b) Every convicted offender who, as of July 1, 2000, is in a county jail or a community corrections facility pursuant to article 27 of title 17, C.R.S., for an offense described in subsection (1) of this section shall submit to and pay for collection and a chemical testing of a biological substance sample from the offender to determine the genetic markers thereof. (c) (Deleted by amendment, L. 2001, p. 953, 1, effective March 31, 2002.) (d) Every convicted offender who, as of July 1, 2000, is on probation for an offense described in subsection (1) of this section shall submit to and pay for collection and a chemical testing of a biological substance sample from the offender to determine the genetic markers thereof. (3) Collection of the biological substance samples required by subsection (1.5) of this section and paragraph (b) of subsection (2) of this section shall be collected at least thirty days prior to the person's discharge or release from custody. Collection of the biological substance samples required by paragraph (d) of subsection (2) of this section shall be collected prior to June 30, 2001. (3.5) (a) Every offender who is in the custody of the executive director of the department of corrections, in a community corrections facility pursuant to article 27 of title 17, C.R.S., or on probation as a result of a conviction of or a plea to a felony shall, prior to the offender's discharge or release to parole, submit to and pay for collection and chemical testing of a biological substance sample from the offender to determine the genetic markers thereof prior to release. (b) Every offender who is in a county jail, in a community corrections facility pursuant to article 27 of title 17, C.R.S., or on probation as a result of a conviction of or a plea to an offense involving unlawful sexual behavior, as defined in section 16-22-102 (9), or an offense the underlying factual basis of which involves unlawful sexual behavior, shall, prior to the offender's release from custody, submit to and pay for collection and chemical testing of a biological substance sample from the offender to determine the genetic markers thereof. (3.7) The biological substance samples required by subsection (3.5) of this section shall be collected at least thirty days prior to the offender's discharge or release from custody. (4) The judicial department, the department of corrections, a sheriff, or a contractor may use reasonable force to obtain biological substance samples in accordance with this section using medically recognized procedures. In addition, a person's refusal to comply with this section may be grounds for revocation or denial of parole or probation. (5) Any moneys received from offenders pursuant to this section shall be deposited in the offender identification fund created in section 24-33.5-415.6, C.R.S. (6) (a) The Colorado bureau of investigation is directed to conduct the chemical testing of the biological substance samples obtained pursuant to this section. The results thereof shall be filed and maintained by the Colorado bureau of investigation and shall be furnished to any law enforcement agency upon request. (b) The Colorado bureau of investigation shall establish a schedule for chemical testing to test as many samples as possible within existing appropriations. The schedule may show a significant number of untested biological substance samples. The joint budget committee, or any successor committee, shall annually review the appropriation to the Colorado bureau of investigation within the department of public safety for chemical genetic testing to determine whether an increased appropriation is necessary. (c) The Colorado bureau of investigation shall store and preserve all biological substance samples until chemical testing is performed. SECTION 2. Part 1 of article 11 of title 16, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 16-11-102.4. Brain fingerprinting pilot program - cash fund. (1) An offender who is in the custody of the department of corrections as a result of a conviction of or a plea to a felony offense may request administration of an electronic brain wave response test to show that the offender is innocent of the offense, which test is subject to available appropriations. (2) There is hereby created in the state treasury the brain fingerprinting pilot program fund, referred to in this subsection (2) as the "fund", that shall consist of any gifts, grants, and donations received by the department of corrections and any moneys that may be appropriated to the fund by the general assembly. The moneys in the fund shall be subject to annual appropriation by the general assembly for the direct and indirect costs associated with the implementation of the brain fingerprinting pilot program. The department of corrections is authorized to seek and accept gifts, grants, and donations from private or public sources for the purposes of this section. All private and public funds received through gifts, grants, and donations shall be transmitted to the state treasurer, who shall credit the same to the fund. Any moneys in the fund not expended for the purpose of this section may be invested by the state treasurer as provided by law. All interest and income derived from the investment and deposit of moneys in the fund shall be credited to the fund. Any unexpended and unencumbered moneys remaining in the fund at the end of a fiscal year shall remain in the fund and shall not be credited or transferred to the general fund or another fund. SECTION 3. Repeal. 16-11-104, 16-11-204.3, and 17-22.5-407, Colorado Revised Statutes, are repealed. SECTION 4. Repeal. 16-11-308 (4.5), Colorado Revised Statutes, is repealed as follows: 16-11-308. Custody of department of corrections - procedure. (4.5) (a) While confined in the diagnostic center, each of the following offenders shall submit to a chemical testing of a biological substance sample from the offender to determine the genetic markers: (I) Any offender sentenced on or after July 1, 2000, as a habitual offender pursuant to the provisions of section 18-1.3-801, C.R.S.; and (II) Any offender convicted of one or more of the following offenses committed on or after July 1, 2000: (A) Second degree burglary as described in section 18-4-203, C.R.S.; or (B) Third degree burglary as described in section 18-4-204, C.R.S. (b) The results of the testing conducted pursuant to paragraph (a) of this subsection (4.5) shall be filed and maintained by the Colorado bureau of investigation. The results of such test shall be furnished to any law enforcement agency upon request. SECTION 5. Repeal. 17-2-201 (5) (h), Colorado Revised Statutes, is repealed as follows: 17-2-201. State board of parole. (5) (h) (I) As a condition of parole, the board may require any person found guilty of or who pleads guilty or nolo contendere to a sexual offense under the department's code of penal discipline to submit to a testing of a biological substance sample from the person to determine the genetic markers thereof. (II) If such testing is required, it shall occur prior to the offender's release from incarceration, and the results thereof shall be filed with and maintained by the Colorado bureau of investigation. The results of such test shall be furnished to any law enforcement agency upon request. (III) The provisions of this paragraph (h) shall apply to any person who is so adjudicated for an act committed on or after July 1, 1999. SECTION 6. Repeal. 17-22.5-202 (3) (b.5) (II) and (3.5), Colorado Revised Statutes, are repealed as follows: 17-22.5-202. Ticket to leave - discharge - clothes, money, transportation. (3) Prior to the release from a correctional facility by discharge or parole of any person imprisoned for the commission of a child abuse offense which occurred within the state of Colorado, the executive director shall: (b.5) (II) In addition, the department shall require any offender convicted of or who pleads guilty or nolo contendere to an offense involving unlawful sexual behavior or for which the factual basis involved unlawful sexual behavior as defined in section 16-22-102 (9), C.R.S., to submit to chemical testing of a biological substance sample from the offender to determine the genetic markers thereof. Such testing shall occur prior to the offender's release from incarceration, and the results thereof shall be filed with and maintained by the Colorado bureau of investigation. The results of such tests shall be furnished to any law enforcement agency upon request. (3.5) Any offender discharged from a correctional facility on or after July 1, 2000, who is not subject to parole or supervision shall submit to a chemical testing of a biological substance sample from the offender to determine the genetic markers thereof. Such testing shall occur at least ninety days prior to the offender's release from incarceration, and the results thereof shall be filed with and maintained by the Colorado bureau of investigation. The results of such tests shall be furnished to any law enforcement agency upon request. SECTION 7. 18-1.3-204 (2) (e), Colorado Revised Statutes, is amended to read: 18-1.3-204. Conditions of probation. (2) (e) If the defendant is convicted of an offense that subjects the defendant to genetic testing pursuant to section 16-11-204.3 section 16-11-102.3 (3.5) (b), C.R.S., the court shall assess to the defendant the cost of collecting and testing a biological substance sample from the defendant as required in section 16-11-204.3 section 16-11-102.3 (3.5) (b), C.R.S. SECTION 8. 18-1.3-407 (11.5) (a) (I), Colorado Revised Statutes, is amended to read: 18-1.3-407. Sentences - youthful offenders - legislative declaration - powers and duties of district court - authorization for youthful offender system - powers and duties of department of corrections. (11.5) (a) (I) Any juvenile who is sentenced to the youthful offender system following conviction of an offense involving unlawful sexual behavior, as defined in section 16-22-102 (9), or for which the underlying factual basis involved an offense involving unlawful sexual behavior, shall submit to and pay for collection and a chemical testing of a biological substance sample from the juvenile to determine the genetic markers thereof. SECTION 9. 19-2-924.5 (1) (a), Colorado Revised Statutes, is amended to read: 19-2-924.5. Juveniles committed to department of human services - genetic testing. (1) (a) Any juvenile who is committed to is in the custody of the department of human services following adjudication resulting in commitment for an offense involving unlawful sexual behavior, as defined in section 16-22-102 (9), C.R.S., or for which an offense the underlying factual basis involved an offense involving of which involves unlawful sexual behavior, or who is in the custody of the department of human services for an offense that would constitute a felony if committed by an adult, shall submit to and pay for collection and a chemical testing of a biological substance sample from the juvenile to determine the genetic markers thereof. SECTION 10. 19-2-925.5 (1) (a), Colorado Revised Statutes, is amended to read: 19-2-925.5. Genetic testing. (1) (a) As a condition of probation or supervision, any juvenile who is adjudicated or receives is on probation or supervision as a result of an adjudication or a deferred adjudication for an offense involving unlawful sexual behavior, as defined in section 16-22-102 (9), C.R.S., or for which an offense the underlying factual basis involved an offense involving of which involves unlawful sexual behavior, or for an offense that would constitute a felony if committed by an adult, shall submit to and pay for collection and a chemical testing of a biological substance sample from the offender to determine the genetic markers thereof. SECTION 11. 24-33.5-415.6, Colorado Revised Statutes, is amended to read: 24-33.5-415.6. Offender identification - fund. (1) There is hereby created in the state treasury the offender identification fund, referred to in this section as the "fund". Moneys in the fund shall consist of payments for genetic testing received from offenders pursuant to sections 16-11-102.3, 16-11-104, 16-11-204.3, 18-1.3-407, 19-2-924.5, and 19-2-925.5, C.R.S. Subject to annual appropriations by the general assembly, the executive director and the state court administrator are authorized to expend moneys in the fund to pay for genetic testing of offenders pursuant to sections 16-11-102.3, 16-11-104, 16-11-204.3, 18-1.3-407, 19-2-924.5, and 19-2-925.5, C.R.S. At the end of any fiscal year, all unexpended and unencumbered moneys in the fund shall remain therein and shall not be credited or transferred to the general fund or any other fund. (2) Upon the effective date of the repeal of section 24-33.5-415.5, any moneys remaining in the sex offender identification fund shall be credited to the offender identification fund. SECTION 12. 24-72-302 (4), Colorado Revised Statutes, is amended to read: 24-72-302. Definitions. As used in this part 3, unless the context otherwise requires: (4) "Criminal justice records" means all books, papers, cards, photographs, tapes, recordings, or other documentary materials, regardless of form or characteristics, that are made, maintained, or kept by any criminal justice agency in the state for use in the exercise of functions required or authorized by law or administrative rule, including but not limited to the results of chemical biological substance testing to determine genetic markers conducted pursuant to sections section 16-11-102.3, 16-11-104, 16-11-204.3, 16-11-308 (4.5), 17-2-201 (5) (h), and 17-22.5-202 (3) (b.5) (II) and (3.5), C.R.S. SECTION 13. 24-72-305 (1.5), Colorado Revised Statutes, is amended to read: 24-72-305. Allowance or denial of inspection - grounds - procedure - appeal. (1.5) On the ground that disclosure would be contrary to the public interest, the custodian of criminal justice records shall deny access to the results of chemical biological substance testing to determine the genetic markers conducted pursuant to sections section 16-11-102.3, 16-11-104, 16-11-204.3, 16-11-308 (4.5), 17-2-201 (5) (h), and 17-22.5-202 (3) (b.5) (II) and (3.5), C.R.S. SECTION 14. Effective date. This act shall take effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly that is allowed for submitting a referendum petition pursuant to article V, section 1 (3) of the state constitution (August 9, 2006, if adjournment sine die is on May 10, 2006); except that, if a referendum petition is filed against this act or an item, section, or part of this act within such period, then the act, item, section, or part, if approved by the people, shall take effect on the date of the official declaration of the vote thereon by proclamation of the governor.