101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB1891

 

Introduced 2/15/2019, by Sen. Antonio Muņoz

 

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

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


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CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

 

 

A BILL FOR

 

SB1891LRB101 08018 SLF 53079 b

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

 

 

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

 

 

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1the course of the requested forensic testing, the forensic
2scientist has determined that complete consumption of an
3evidentiary sample is required to pursue a meaningful
4analytical result.
5    (b) After a judgment of conviction is entered, the evidence
6shall either be impounded with the Clerk of the Circuit Court
7or shall be securely retained by a law enforcement agency.
8Retention shall be permanent in cases where a sentence of death
9is imposed. Retention shall be until the completion of the
10sentence, including the period of mandatory supervised release
11for the offense, or January 1, 2006, whichever is later, for
12any conviction for an offense or an attempt of an offense
13defined in Article 9 of the Criminal Code of 1961 or the
14Criminal Code of 2012 or in Section 11-1.20, 11-1.30, 11-1.40,
1511-1.50, 11-1.60, 12-13, 12-14, 12-14.1, 12-15, or 12-16 of the
16Criminal Code of 1961 or the Criminal Code of 2012 or for 7
17years following any conviction for any other felony for which
18the defendant's genetic profile may be taken by a law
19enforcement agency and submitted for comparison in a forensic
20DNA database for unsolved offenses.
21    (c) After a judgment of conviction is entered, the law
22enforcement agency required to retain evidence described in
23subsection (a) may petition the court with notice to the
24defendant or, in cases where the defendant has died, his or her
25estate, his or her attorney of record, or an attorney appointed
26for that purpose by the court for entry of an order allowing it

 

 

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

 

 

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