97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB3433

 

Introduced 2/24/2011, by Rep. Jack D. Franks

 

SYNOPSIS AS INTRODUCED:
 
730 ILCS 5/5-4-3  from Ch. 38, par. 1005-4-3
30 ILCS 805/8.35 new

    Amends the Unified Code of Corrections. Provides that a person arrested for the commission or attempted commission of a violent crime shall submit specimens of blood, saliva, or tissue to the Illinois Department of State Police for DNA analysis and categorization into genetic marker groupings. Sets forth procedures to be followed if the charge for which the specimens were taken is dismissed, the defendant is acquitted at trial, or the defendant's conviction is overturned and procedures to be followed if the person is convicted of, granted court supervision for, or found guilty under the Juvenile Court Act of 1987 of the offense for which the person was arrested. Amends the State Mandates Act to require implementation without reimbursement.


LRB097 08895 RLC 49026 b

FISCAL NOTE ACT MAY APPLY
STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT

 

 

A BILL FOR

 

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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 Unified Code of Corrections is amended by
5changing Section 5-4-3 as follows:
 
6    (730 ILCS 5/5-4-3)  (from Ch. 38, par. 1005-4-3)
7    Sec. 5-4-3. Persons required to submit convicted of, or
8found delinquent for, certain offenses or institutionalized as
9sexually dangerous; specimens; genetic marker groups.
10    (a) Any person convicted of, found guilty under the
11Juvenile Court Act of 1987 for, or who received a disposition
12of court supervision for, a qualifying offense or attempt of a
13qualifying offense, convicted or found guilty of any offense
14classified as a felony under Illinois law, convicted or found
15guilty of any offense requiring registration under the Sex
16Offender Registration Act, found guilty or given supervision
17for any offense classified as a felony under the Juvenile Court
18Act of 1987, convicted or found guilty of, under the Juvenile
19Court Act of 1987, any offense requiring registration under the
20Sex Offender Registration Act, or institutionalized as a
21sexually dangerous person under the Sexually Dangerous Persons
22Act, or committed as a sexually violent person under the
23Sexually Violent Persons Commitment Act shall, regardless of

 

 

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1the sentence or disposition imposed, be required to submit
2specimens of blood, saliva, or tissue to the Illinois
3Department of State Police in accordance with the provisions of
4this Section, provided such person is:
5        (1) convicted of a qualifying offense or attempt of a
6    qualifying offense on or after July 1, 1990 and sentenced
7    to a term of imprisonment, periodic imprisonment, fine,
8    probation, conditional discharge or any other form of
9    sentence, or given a disposition of court supervision for
10    the offense;
11        (1.5) found guilty or given supervision under the
12    Juvenile Court Act of 1987 for a qualifying offense or
13    attempt of a qualifying offense on or after January 1,
14    1997;
15        (2) ordered institutionalized as a sexually dangerous
16    person on or after July 1, 1990;
17        (3) convicted of a qualifying offense or attempt of a
18    qualifying offense before July 1, 1990 and is presently
19    confined as a result of such conviction in any State
20    correctional facility or county jail or is presently
21    serving a sentence of probation, conditional discharge or
22    periodic imprisonment as a result of such conviction;
23        (3.5) convicted or found guilty of any offense
24    classified as a felony under Illinois law or found guilty
25    or given supervision for such an offense under the Juvenile
26    Court Act of 1987 on or after August 22, 2002;

 

 

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1        (4) presently institutionalized as a sexually
2    dangerous person or presently institutionalized as a
3    person found guilty but mentally ill of a sexual offense or
4    attempt to commit a sexual offense;
5        (4.5) ordered committed as a sexually violent person on
6    or after the effective date of the Sexually Violent Persons
7    Commitment Act; or
8        (5) seeking transfer to or residency in Illinois under
9    Sections 3-3-11.05 through 3-3-11.5 of the Unified Code of
10    Corrections and the Interstate Compact for Adult Offender
11    Supervision or the Interstate Agreements on Sexually
12    Dangerous Persons Act.
13    Notwithstanding other provisions of this Section, any
14person incarcerated in a facility of the Illinois Department of
15Corrections or the Illinois Department of Juvenile Justice on
16or after August 22, 2002, whether for a term of years, natural
17life, or a sentence of death, who has not yet submitted a
18sample of blood, saliva, or tissue shall be required to submit
19a specimen of blood, saliva, or tissue prior to his or her
20final discharge, or release on parole or mandatory supervised
21release, as a condition of his or her parole or mandatory
22supervised release, or within 6 months from August 13, 2009
23(the effective date of Public Act 96-426), whichever is sooner.
24A person incarcerated on or after August 13, 2009 (the
25effective date of Public Act 96-426) shall be required to
26submit a sample within 45 days of incarceration, or prior to

 

 

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1his or her final discharge, or release on parole or mandatory
2supervised release, as a condition of his or her parole or
3mandatory supervised release, whichever is sooner. These
4specimens shall be placed into the State or national DNA
5database, to be used in accordance with other provisions of
6this Section, by the Illinois State Police.
7    Notwithstanding other provisions of this Section, any
8person sentenced to life imprisonment in a facility of the
9Illinois Department of Corrections after the effective date of
10this amendatory Act of the 94th General Assembly or sentenced
11to death after the effective date of this amendatory Act of the
1294th General Assembly shall be required to provide a specimen
13of blood, saliva, or tissue within 45 days after sentencing or
14disposition at a collection site designated by the Illinois
15Department of State Police. Any person serving a sentence of
16life imprisonment in a facility of the Illinois Department of
17Corrections on the effective date of this amendatory Act of the
1894th General Assembly or any person who is under a sentence of
19death on the effective date of this amendatory Act of the 94th
20General Assembly shall be required to provide a specimen of
21blood, saliva, or tissue upon request at a collection site
22designated by the Illinois Department of State Police.
23    (a-5) Any person who was otherwise convicted of or received
24a disposition of court supervision for any other offense under
25the Criminal Code of 1961 or who was found guilty or given
26supervision for such a violation under the Juvenile Court Act

 

 

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1of 1987, may, regardless of the sentence imposed, be required
2by an order of the court to submit specimens of blood, saliva,
3or tissue to the Illinois Department of State Police in
4accordance with the provisions of this Section.
5    (b) Any person required by paragraphs (a)(1), (a)(1.5),
6(a)(2), (a)(3.5), and (a-5) to provide specimens of blood,
7saliva, or tissue shall provide specimens of blood, saliva, or
8tissue within 45 days after sentencing or disposition at a
9collection site designated by the Illinois Department of State
10Police.
11    (c) Any person required by paragraphs (a)(3), (a)(4), and
12(a)(4.5) to provide specimens of blood, saliva, or tissue shall
13be required to provide such samples prior to final discharge or
14within 6 months from August 13, 2009 (the effective date of
15Public Act 96-426), whichever is sooner. These specimens shall
16be placed into the State or national DNA database, to be used
17in accordance with other provisions of this Act, by the
18Illinois State Police.
19    (c-5) Any person required by paragraph (a)(5) to provide
20specimens of blood, saliva, or tissue shall, where feasible, be
21required to provide the specimens before being accepted for
22conditioned residency in Illinois under the interstate compact
23or agreement, but no later than 45 days after arrival in this
24State.
25    (c-6) The Illinois Department of State Police may determine
26which type of specimen or specimens, blood, saliva, or tissue,

 

 

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1is acceptable for submission to the Division of Forensic
2Services for analysis.
3    (d) The Illinois Department of State Police shall provide
4all equipment and instructions necessary for the collection of
5blood samples. The collection of samples shall be performed in
6a medically approved manner. Only a physician authorized to
7practice medicine, a registered nurse or other qualified person
8trained in venipuncture may withdraw blood for the purposes of
9this Act. The samples shall thereafter be forwarded to the
10Illinois Department of State Police, Division of Forensic
11Services, for analysis and categorizing into genetic marker
12groupings.
13    (d-1) The Illinois Department of State Police shall provide
14all equipment and instructions necessary for the collection of
15saliva samples. The collection of saliva samples shall be
16performed in a medically approved manner. Only a person trained
17in the instructions promulgated by the Illinois State Police on
18collecting saliva may collect saliva for the purposes of this
19Section. The samples shall thereafter be forwarded to the
20Illinois Department of State Police, Division of Forensic
21Services, for analysis and categorizing into genetic marker
22groupings.
23    (d-2) The Illinois Department of State Police shall provide
24all equipment and instructions necessary for the collection of
25tissue samples. The collection of tissue samples shall be
26performed in a medically approved manner. Only a person trained

 

 

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1in the instructions promulgated by the Illinois State Police on
2collecting tissue may collect tissue for the purposes of this
3Section. The samples shall thereafter be forwarded to the
4Illinois Department of State Police, Division of Forensic
5Services, for analysis and categorizing into genetic marker
6groupings.
7    (d-5) To the extent that funds are available, the Illinois
8Department of State Police shall contract with qualified
9personnel and certified laboratories for the collection,
10analysis, and categorization of known samples, except as
11provided in subsection (n) of this Section.
12    (d-6) Agencies designated by the Illinois Department of
13State Police and the Illinois Department of State Police may
14contract with third parties to provide for the collection or
15analysis of DNA, or both, of an offender's blood, saliva, and
16tissue samples, except as provided in subsection (n) of this
17Section.
18    (e) The genetic marker groupings shall be maintained by the
19Illinois Department of State Police, Division of Forensic
20Services.
21    (f) The genetic marker grouping analysis information
22obtained pursuant to this Act shall be confidential and shall
23be released only to peace officers of the United States, of
24other states or territories, of the insular possessions of the
25United States, of foreign countries duly authorized to receive
26the same, to all peace officers of the State of Illinois and to

 

 

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1all prosecutorial agencies, and to defense counsel as provided
2by Section 116-5 of the Code of Criminal Procedure of 1963. The
3genetic marker grouping analysis information obtained pursuant
4to this Act shall be used only for (i) valid law enforcement
5identification purposes and as required by the Federal Bureau
6of Investigation for participation in the National DNA
7database, (ii) technology validation purposes, (iii) a
8population statistics database, (iv) quality assurance
9purposes if personally identifying information is removed, (v)
10assisting in the defense of the criminally accused pursuant to
11Section 116-5 of the Code of Criminal Procedure of 1963, or
12(vi) identifying and assisting in the prosecution of a person
13who is suspected of committing a sexual assault as defined in
14Section 1a of the Sexual Assault Survivors Emergency Treatment
15Act. Notwithstanding any other statutory provision to the
16contrary, all information obtained under this Section shall be
17maintained in a single State data base, which may be uploaded
18into a national database, and which information may be subject
19to expungement only as set forth in subsection (f-1).
20    (f-1) Upon receipt of notification of a reversal of a
21conviction based on actual innocence, or of the granting of a
22pardon pursuant to Section 12 of Article V of the Illinois
23Constitution, if that pardon document specifically states that
24the reason for the pardon is the actual innocence of an
25individual whose DNA record has been stored in the State or
26national DNA identification index in accordance with this

 

 

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1Section by the Illinois Department of State Police, the DNA
2record shall be expunged from the DNA identification index, and
3the Department shall by rule prescribe procedures to ensure
4that the record and any samples, analyses, or other documents
5relating to such record, whether in the possession of the
6Department or any law enforcement or police agency, or any
7forensic DNA laboratory, including any duplicates or copies
8thereof, are destroyed and a letter is sent to the court
9verifying the expungement is completed.
10    (f-5) Any person who intentionally uses genetic marker
11grouping analysis information, or any other information
12derived from a DNA sample, beyond the authorized uses as
13provided under this Section, or any other Illinois law, is
14guilty of a Class 4 felony, and shall be subject to a fine of
15not less than $5,000.
16    (f-6) The Illinois Department of State Police may contract
17with third parties for the purposes of implementing this
18amendatory Act of the 93rd General Assembly, except as provided
19in subsection (n) of this Section. Any other party contracting
20to carry out the functions of this Section shall be subject to
21the same restrictions and requirements of this Section insofar
22as applicable, as the Illinois Department of State Police, and
23to any additional restrictions imposed by the Illinois
24Department of State Police.
25    (g) For the purposes of this Section, "qualifying offense"
26means any of the following:

 

 

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1        (1) any violation or inchoate violation of Section
2    11-6, 11-9.1, 11-11, 11-18.1, 12-15, or 12-16 of the
3    Criminal Code of 1961;
4        (1.1) any violation or inchoate violation of Section
5    9-1, 9-2, 10-1, 10-2, 12-11, 12-11.1, 18-1, 18-2, 18-3,
6    18-4, 19-1, or 19-2 of the Criminal Code of 1961 for which
7    persons are convicted on or after July 1, 2001;
8        (2) any former statute of this State which defined a
9    felony sexual offense;
10        (3) (blank);
11        (4) any inchoate violation of Section 9-3.1, 11-9.3,
12    12-7.3, or 12-7.4 of the Criminal Code of 1961; or
13        (5) any violation or inchoate violation of Article 29D
14    of the Criminal Code of 1961.
15    (g-5) (Blank).
16    (h) The Illinois Department of State Police shall be the
17State central repository for all genetic marker grouping
18analysis information obtained pursuant to this Act. The
19Illinois Department of State Police may promulgate rules for
20the form and manner of the collection of blood, saliva, or
21tissue samples and other procedures for the operation of this
22Act. The provisions of the Administrative Review Law shall
23apply to all actions taken under the rules so promulgated.
24    (i) (1) A person required to provide a blood, saliva, or
25    tissue specimen shall cooperate with the collection of the
26    specimen and any deliberate act by that person intended to

 

 

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1    impede, delay or stop the collection of the blood, saliva,
2    or tissue specimen is a Class A misdemeanor.
3        (2) In the event that a person's DNA sample is not
4    adequate for any reason, the person shall provide another
5    DNA sample for analysis. Duly authorized law enforcement
6    and corrections personnel may employ reasonable force in
7    cases in which an individual refuses to provide a DNA
8    sample required under this Act.
9    (j) Any person required by subsection (a) to submit
10specimens of blood, saliva, or tissue to the Illinois
11Department of State Police for analysis and categorization into
12genetic marker grouping, in addition to any other disposition,
13penalty, or fine imposed, shall pay an analysis fee of $200. If
14the analysis fee is not paid at the time of sentencing, the
15court shall establish a fee schedule by which the entire amount
16of the analysis fee shall be paid in full, such schedule not to
17exceed 24 months from the time of conviction. The inability to
18pay this analysis fee shall not be the sole ground to
19incarcerate the person.
20    (k) All analysis and categorization fees provided for by
21subsection (j) shall be regulated as follows:
22        (1) The State Offender DNA Identification System Fund
23    is hereby created as a special fund in the State Treasury.
24        (2) All fees shall be collected by the clerk of the
25    court and forwarded to the State Offender DNA
26    Identification System Fund for deposit. The clerk of the

 

 

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1    circuit court may retain the amount of $10 from each
2    collected analysis fee to offset administrative costs
3    incurred in carrying out the clerk's responsibilities
4    under this Section.
5        (3) Fees deposited into the State Offender DNA
6    Identification System Fund shall be used by Illinois State
7    Police crime laboratories as designated by the Director of
8    State Police. These funds shall be in addition to any
9    allocations made pursuant to existing laws and shall be
10    designated for the exclusive use of State crime
11    laboratories. These uses may include, but are not limited
12    to, the following:
13            (A) Costs incurred in providing analysis and
14        genetic marker categorization as required by
15        subsection (d).
16            (B) Costs incurred in maintaining genetic marker
17        groupings as required by subsection (e).
18            (C) Costs incurred in the purchase and maintenance
19        of equipment for use in performing analyses.
20            (D) Costs incurred in continuing research and
21        development of new techniques for analysis and genetic
22        marker categorization.
23            (E) Costs incurred in continuing education,
24        training, and professional development of forensic
25        scientists regularly employed by these laboratories.
26    (l) The failure of a person to provide a specimen, or of

 

 

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1any person or agency to collect a specimen, within the 45 day
2period shall in no way alter the obligation of the person to
3submit such specimen, or the authority of the Illinois
4Department of State Police or persons designated by the
5Department to collect the specimen, or the authority of the
6Illinois Department of State Police to accept, analyze and
7maintain the specimen or to maintain or upload results of
8genetic marker grouping analysis information into a State or
9national database.
10    (m) If any provision of this amendatory Act of the 93rd
11General Assembly is held unconstitutional or otherwise
12invalid, the remainder of this amendatory Act of the 93rd
13General Assembly is not affected.
14    (n) Neither the Department of State Police, the Division of
15Forensic Services, nor any laboratory of the Division of
16Forensic Services may contract out forensic testing for the
17purpose of an active investigation or a matter pending before a
18court of competent jurisdiction without the written consent of
19the prosecuting agency. For the purposes of this subsection
20(n), "forensic testing" includes the analysis of physical
21evidence in an investigation or other proceeding for the
22prosecution of a violation of the Criminal Code of 1961 or for
23matters adjudicated under the Juvenile Court Act of 1987, and
24includes the use of forensic databases and databanks, including
25DNA, firearm, and fingerprint databases, and expert testimony.
26This subsection (n) does not prohibit the collection of samples

 

 

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1under subsection (o).
2    (o) Every person arrested on or after the effective date of
3this amendatory Act of the 97th General Assembly for the
4commission or attempted commission of a violent crime, as
5defined in Section 3 of the Rights of Crime Victims and
6Witnesses Act, shall submit specimens of blood, saliva, or
7tissue within 45 days after arrest to the Illinois Department
8of State Police at a collection site designated by the Illinois
9Department of State Police. Subsections (c-6), (d), (d-1),
10(d-2), (d-5), (d-6), (e), (f), (f-1), (f-5), (f-6), (h), and
11(i) apply to the collection of samples under this subsection
12(o). If specimens of blood, saliva, or tissue are submitted by
13a person under this subsection (o) and the person is
14subsequently convicted of, granted court supervision for, or
15found guilty under the Juvenile Court Act of 1987 of the
16offense for which the person was arrested, the specimens shall
17be retained as the specimens required under subsection (a) and
18the person shall pay the analysis fee in accordance with
19subsection (j). If the charge for which the specimen was taken
20is dismissed or the defendant is acquitted at trial, or the
21defendant is convicted but the conviction is overturned, the
22record and any samples, analyses, or other documents relating
23to such record shall be expunged and destroyed in the manner
24prescribed in subsection (f-1), provided there is no other
25pending warrant that would otherwise require the preservation
26of the record and any samples, analyses, or other documents

 

 

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1relating to such record.
2(Source: P.A. 96-426, eff. 8-13-09; 96-642, eff. 8-24-09;
396-1000, eff. 7-2-10.)
 
4    Section 90. The State Mandates Act is amended by adding
5Section 8.35 as follows:
 
6    (30 ILCS 805/8.35 new)
7    Sec. 8.35. Exempt mandate. Notwithstanding Sections 6 and 8
8of this Act, no reimbursement by the State is required for the
9implementation of any mandate created by this amendatory Act of
10the 97th General Assembly.