2021 Georgia Code
Title 35 - Law Enforcement Officers and Agencies
Chapter 3 - Georgia Bureau of Investigation
Article 6A - Dna Sampling, Collection, and Analysis
§ 35-3-163. Dissemination of Information in Data Bank to Law Enforcement Officials; Comparison of Profile; Request for Search; Separate Statistical Data Base Authorized; Fee for Search and Comparative Analysis

1. It shall be the duty of the bureau to receive samples and to analyze, classify, and file the results of DNA identification characteristics of samples submitted pursuant to Code Section 35-3-160 and to make such information available as provided in this Code section. The results of an analysis and comparison of the identification of the characteristics from two or more biological samples shall be made available directly to federal, state, and local law enforcement officers upon a request made in furtherance of an official investigation of any criminal offense. A request may be made by personal contact, mail, or electronic means. The name of the requestor and the purpose for which the information is requested shall be maintained on file with the bureau.
2. Upon request from a prosecuting attorney or law enforcement agency, the bureau may compare a DNA profile from an analysis of a sample from a suspect in a criminal investigation when the sample was obtained through a search warrant, consent of the suspect, court order, or other lawful means to DNA profiles lawfully collected and maintained by the bureau. The bureau shall not add a DNA profile of any such suspect to any DNA data bank except as provided in this article.
3. 1. Upon his or her request, a copy of the request for search shall be furnished to any individual identified and charged with an offense as the result of a search of information in the data bank. Only when a sample or DNA profile supplied by the requestor satisfactorily matches the requestor's profile in the data bank shall the existence of data in the data bank be confirmed or identifying information from the data bank be disseminated.
   2. The name of the individual whose profile is contained in the data bank may be related to any other data bases which are constructed for law enforcement purposes and may be disseminated only for law enforcement purposes.
   3. Upon a showing by the accused in a criminal proceeding that access to the DNA data bank is material to the investigation, preparation, or presentation of a defense at trial or in a posttrial proceeding, a superior court having proper jurisdiction over such criminal proceeding shall direct the bureau to compare the DNA profile which has been generated by the accused through an independent test against the data bank, provided that such DNA profile has been generated in accordance with standards for forensic DNA analysis adopted pursuant to 42 U.S.C. Section 14131.
4. The bureau shall develop procedures governing the methods of obtaining information from the data bank in accordance with this Code section and procedures for verification of the identity and authority of the requestor. The bureau shall specify the positions in that agency which require regular access to the data bank and samples submitted as a necessary function of the job.
5. The bureau may create a separate statistical data base composed of DNA profiles of samples of persons whose identity is unknown. Nothing in this Code section or Code Section 35-3-164 shall prohibit the bureau from sharing or otherwise disseminating the information in the statistical data base with law enforcement or criminal justice agencies within or outside the state.
6. The bureau may charge a reasonable fee to search and provide a comparative analysis of DNA profiles in the data bank to any authorized law enforcement agency outside of this state.

(Code 1981, §35-3-163, enacted by Ga. L. 2011, p. 264, § 3-1/SB 80; Ga. L. 2013, p. 141, § 35/HB 79; Ga. L. 2019, p. 299, § 2/HB 470.)

The 2019 amendment, effective April 28, 2019, in subsection (b), in the first sentence, substituted "prosecuting attorney" for "prosecutor" near the beginning and substituted "when" for "where" in the middle, and deleted "upon conviction" following "except" near the end of the second sentence; substituted "individual" for "person" in the middle of the first sentence in paragraph (c)(1); substituted "individual" for "convicted felon" near the beginning of paragraph (c)(2); and, in the middle of paragraph (c)(3), substituted "posttrial" for "postconviction" and substituted "the DNA profile" for "a DNA profile".

- For note, "A Modern Day Arthur Dimmesdale: Public Notification When Sex Offenders Are Released into the Community," see 12 Ga. St. U. L. Rev. 1187 (1995). For note, "Padgett v. Donald: Why Not So Special," see 57 Mercer L. Rev. 673 (2006).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code Section 35-3-160 et seq., which was based on Ga. L. 2000, p. 1075, § 4, and which was subsequently repealed but was succeeded by provisions in this article, are included in the annotations for this Code section.

- Although prisoners retain a right to bodily privacy under Ga. Const. 1983, Art. I, Sec. I, Para. I, the extraction of saliva required by O.C.G.A. § 24-4-60 (see now O.C.G.A. § 35-3-160) did not violate that right because the former statute promoted law enforcement, and was narrowly tailored to promote that purpose by requiring DNA profiling on a limited population of incarcerated felons and forbidding release of DNA profiles except for law enforcement purposes. Padgett v. Donald, 401 F.3d 1273 (11th Cir. 2005), cert. denied, 546 U.S. 820, 126 S. Ct. 352, 163 L. Ed. 2d 61 (2005) (decided under Ga. L. 2000, p. 1075, § 4).

- Match of defendant's DNA profile to DNA of semen collected at the scene of a crime established probable cause for a search warrant; defendant's argument that the state needed to further prove that the requirements and procedures set forth in former O.C.G.A. §§ 24-4-60 through24-4-65 (see now O.C.G.A. § 35-3-160 et seq.) were followed was without merit, and the trial court's order denying defendant's motion to suppress evidence was affirmed. Brown v. State, 270 Ga. App. 176, 605 S.E.2d 885 (2004) (decided under Ga. L. 2000, p. 1075, § 4).

Cited in Bickley v. State, 227 Ga. App. 413, 489 S.E.2d 167 (1997); Fortune v. State, 300 Ga. App. 550, 685 S.E.2d 466 (2009).

RESEARCH REFERENCES

ALR.

- Authentication of blood sample taken from human body for purposes other than determining blood alcohol content, 77 A.L.R.5th 201.