2005 North Carolina Code - General Statutes § 15A-268. Preservation of samples of biological materials.

§ 15A‑268.  Preservation of samples of biological materials.

(a)       Notwithstanding any other provision of law and subject to subsection (b) of this section, a governmental entity that collects evidence containing DNA in the course of a criminal investigation shall preserve a sample of the evidence collected for the period of time a defendant convicted of a felony is incarcerated in connection with that case. The governmental entity may determine how the evidence is retained pursuant to this section, provided that the evidence is retained in a condition suitable for DNA testing.

(b)       The governmental entity may dispose of the sample of evidence containing DNA preserved pursuant to subsection (a) of this section before the expiration of the period of time described in subsection (a) of this section if all of the following conditions are met:

(1)       The governmental entity sent notice of its intent to dispose of the sample of evidence to the district attorney in the county in which the conviction was obtained.

(2)       The district attorney gave to each of the following persons written notification of the intent of the entity governmental to dispose of the sample of evidence: any defendant convicted of a felony who is currently incarcerated in connection with the case, the current defendant's counsel of record, the Office of Indigent Defense Services, and the Attorney General. The notice shall be consistent with the provisions of this section, and the district attorney shall send a copy of the notice to the governmental entity. Delivery of written notification from the district attorney to the defendant was effectuated by the district attorney transmitting the written notification to the superintendent of the correctional facility where the defendant was assigned at the time and the superintendent's personal delivery of the written notification to the defendant. Certification of delivery by the superintendent to the defendant in accordance with this subdivision was in accordance with subsection (c) of this section.

(3)       The written notification from the district attorney specified the following:

a.         That the governmental entity would destroy the sample of evidence collected in connection with the case unless the governmental entity received a written request that the sample of evidence not be destroyed.

b.         The address of the governmental entity where the written request was to be sent.

c.         That the written request must be received by the governmental entity within 90 days of the date of receipt by the defendant of the district attorney's written notification.

d.         That the written request must ask that the material not be destroyed or disposed of for one of the following reasons:

1.         The case is currently on appeal.

2.         The case is currently in postconviction proceedings.

3.         The defendant will file within 180 days of the date of receipt by the defendant of the district attorney's written notification a motion for DNA testing pursuant to G.S. 15A‑269, that is followed within 180 days of sending the request that the sample of evidence not be destroyed or disposed of, by a motion for DNA testing pursuant to G.S. 15A‑269, unless a request for extension is requested by the defendant and agreed to by the governmental entity in possession of the evidence.

(4)       The governmental entity did not receive a written request in compliance with the conditions set forth in sub‑subdivision (3)d. of this subsection within 90 days of the date of receipt by the defendant of the district attorney's written notification.

(c)       Upon receiving a written notification from a district attorney in accordance with subdivision (b)(3) of this section, the superintendent shall personally deliver the written notification to the defendant. Upon effectuating personal delivery on the defendant, the superintendent shall sign a sworn written certification that the written notification had been delivered to the defendant in compliance with this subsection indicating the date the delivery was made. The superintendent's certification shall be sent by the superintendent to the governmental entity that intends to dispose of the sample of evidence. The governmental entity may rely on the superintendent's certification as evidence of the date of receipt by the defendant of the district attorney's written notification. (2001‑282, s. 4.)