101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB4892

 

Introduced 2/18/2020, by Rep. John Connor - Jonathan Carroll

 

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.


LRB101 17434 RLC 66843 b

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB4892LRB101 17434 RLC 66843 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 subsection (a) or (a-5)
11of Section 116-4 of the Code of Criminal Procedure of 1963.
12    (b) Sentence. A person who violates this Section is guilty
13of a Class 4 felony.
14    (c) For purposes of this Section, "law enforcement agency"
15has the meaning ascribed to it in subsection (e) of Section
16116-4 of the Code of Criminal Procedure of 1963.
17(Source: P.A. 91-871, eff. 1-1-01; 92-459, eff. 8-22-01.)
 
18    Section 10. The Code of Criminal Procedure of 1963 is
19amended by changing Section 116-4 as follows:
 
20    (725 ILCS 5/116-4)
21    Sec. 116-4. Preservation of evidence for forensic testing.

 

 

HB4892- 2 -LRB101 17434 RLC 66843 b

1    (a) Before or after the trial in a prosecution for a
2violation of Section 11-1.20, 11-1.30, 11-1.40, 11-1.50,
311-1.60, 12-13, 12-14, 12-14.1, 12-15, or 12-16 of the Criminal
4Code of 1961 or the Criminal Code of 2012 or in a prosecution
5for an offense defined in Article 9 of that Code, or in a
6prosecution for an attempt in violation of Section 8-4 of that
7Code of any of the above-enumerated offenses, unless otherwise
8provided herein under subsection (b) or (c) this Section, a law
9enforcement agency or an agent acting on behalf of the law
10enforcement agency shall preserve, subject to a continuous
11chain of custody, any physical evidence in their possession or
12control that is reasonably likely to contain forensic evidence,
13including, but not limited to, fingerprints or biological
14material secured in relation to a trial and with sufficient
15documentation to locate that evidence.
16    (a-5) Notwithstanding any provision of this Code to the
17contrary, forensic testing that would result in the complete
18consumption of an evidentiary sample shall be permitted if the
19forensic testing utilizes methods sufficiently established in
20the particular field that have gained general acceptance and
21the forensic testing was not conducted in bad faith. Prior to
22conducting forensic testing that would result in the complete
23consumption of an evidentiary sample, a forensic scientist must
24take all reasonable measures to preserve a portion of the
25evidentiary sample for subsequent forensic testing, unless in
26the course of the requested forensic testing, the forensic

 

 

HB4892- 3 -LRB101 17434 RLC 66843 b

1scientist has determined that complete consumption of an
2evidentiary sample is required to pursue a meaningful
3analytical result.
4    (b) After a judgment of conviction is entered, the evidence
5shall either be impounded with the Clerk of the Circuit Court
6or shall be securely retained by a law enforcement agency.
7Retention shall be permanent in cases where a sentence of death
8is imposed. Retention shall be until the completion of the
9sentence, including the period of mandatory supervised release
10for the offense, or January 1, 2006, whichever is later, for
11any conviction for an offense or an attempt of an offense
12defined in Article 9 of the Criminal Code of 1961 or the
13Criminal Code of 2012 or in Section 11-1.20, 11-1.30, 11-1.40,
1411-1.50, 11-1.60, 12-13, 12-14, 12-14.1, 12-15, or 12-16 of the
15Criminal Code of 1961 or the Criminal Code of 2012 or for 7
16years following any conviction for any other felony for which
17the defendant's genetic profile may be taken by a law
18enforcement agency and submitted for comparison in a forensic
19DNA database for unsolved offenses.
20    (c) After a judgment of conviction is entered, the law
21enforcement agency required to retain evidence described in
22subsection (a) may petition the court with notice to the
23defendant or, in cases where the defendant has died, his or her
24estate, his or her attorney of record, or an attorney appointed
25for that purpose by the court for entry of an order allowing it
26to dispose of evidence if, after a hearing, the court

 

 

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

 

 

HB4892- 5 -LRB101 17434 RLC 66843 b

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