2016 Kentucky Revised Statutes CHAPTER 524 - INTERFERENCE WITH JUDICIAL ADMINISTRATION .140 Disposal of evidence that may be subject to DNA testing -- Motion to destroy -- Liability for destruction -- Penalty -- Retention of biological material.
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524.140 Disposal of evidence that may be subject to DNA testing -- Motion to
destroy -- Liability for destruction -- Penalty -- Retention of biological
material.
(1)
(2)
(3)
As used in this section:
(a) "Defendant" means a person charged with a:
1.
Capital offense, Class A felony, Class B felony, or Class C felony; or
2.
Class D felony under KRS Chapter 510; and
(b) "Following trial" means after:
1.
The first appeal authorized by the Constitution of Kentucky in a
criminal case has been decided; or
2.
The time for the first appeal authorized by the Constitution of
Kentucky in a criminal case has lapsed without an appeal having
been filed.
No item of evidence gathered by law enforcement, prosecutorial, or defense
authorities that may be subject to deoxyribonucleic acid (DNA) evidence testing
and analysis in order to confirm the guilt or innocence of a criminal defendant
shall be disposed of prior to trial of a criminal defendant unless:
(a) The evidence has been in custody not less than fifty (50) years; or
(b) The evidence has been in custody not less than ten (10) years; and
1.
The prosecution has determined that the defendant will not be tried
for the criminal offense; and
2.
The prosecution has made a motion, before the court in which the
case would have been tried, to destroy the evidence.
No item of evidence gathered by law enforcement, prosecutorial, or defense
authorities that may be subject to deoxyribonucleic acid (DNA) evidence testing
and analysis in order to confirm the guilt or innocence of a criminal defendant
shall be disposed of following the trial unless:
(a) The evidence, together with DNA evidence testing and analysis results,
has been presented at the trial, and the defendant has been found guilty,
pled guilty, or entered an Alford plea at the trial;
(b) The evidence was not introduced at the trial, or if introduced at the trial
was not the subject of DNA testing and analysis, and the defendant has
been found guilty, pled guilty, or entered an Alford plea at the trial, and
the trial court has ordered the destruction of the evidence after an
adversarial hearing conducted upon motion of either the prosecution or
the defendant;
(c) The trial resulted in the defendant being found not guilty or the charges
were dismissed after jeopardy attached, whether or not the evidence was
introduced at the trial or was subject to DNA testing and analysis or not,
and the trial court ordered the destruction of the evidence after an
adversarial hearing conducted upon motion of either the prosecution or
the defendant; or
(d) The trial resulted in the dismissal of charges against the defendant, and
the defendant may be subject to retrial, in which event the evidence shall
(4)
(5)
(6)
(7)
be retained until after the retrial, which shall be considered a new trial for
the purposes of this section.
The burden of proof for a motion to destroy evidence that may be subject to
DNA testing and analysis shall be upon the party making the motion, and the
court may permit the destruction of the evidence under this section upon good
cause shown favoring its destruction.
It is recognized by the General Assembly that the DNA evidence laboratory
testing and analysis procedure consumes and destroys a portion of the
evidence or may destroy all of the evidence if the sample is small. The
consuming and destruction of evidence during the laboratory analysis process
shall not result in liability for its consumption or destruction if the following
conditions are met:
(a) The Department of Kentucky State Police laboratory uses a method of
testing and analysis which preserves as much of the biological material or
other evidence tested and analyzed as is reasonably possible; or
(b) If the Department of Kentucky State Police laboratory knows or
reasonably believes that the entire sample of evidence to be tested and
analyzed that the laboratory, prior to the testing or analysis of the
evidence, notifies in writing the court which ordered the testing and
analysis and counsel for all parties:
1.
That the entire sample of evidence may be destroyed by the testing
and analysis;
2.
The possibility that another laboratory may be able to perform the
testing and analysis in a less destructive manner with at least equal
results;
3.
The name of the laboratory capable of performing the testing and
analysis, the costs of testing and analysis, the advantages of
sending the material to that other laboratory, and the amount of
biological material or other evidence which might be saved by
alternative testing and analysis; and
4.
The Department of Kentucky State Police laboratory follows the
directive of the court with regard to the testing and analysis; or
(c) If the Department of Kentucky State Police laboratory knows or
reasonably believes that so much of the biological material or evidence
may be consumed or destroyed in the testing and analysis that an
insufficient sample will remain for independent testing and analysis that
the laboratory follows the procedure specified in paragraph (b) of this
subsection.
Destruction of evidence in violation of this section shall be a violation of KRS
524.100.
Subject to KRS 422.285(9), the appropriate governmental entity shall retain
any biological material secured in connection with a criminal case for the period
of time that any person remains incarcerated in connection with that case. The
governmental entity shall have the discretion to determine how the evidence is
retained pursuant to this section, provided that the evidence is retained in a
condition suitable for DNA testing and analysis.
Effective:April 8, 2016
History: Amended 2016 Ky. Acts ch. 58, sec. 10, effective April 8, 2016. -Amended 2013 Ky. Acts ch. 77, sec. 3, effective June 25, 2013. -- Amended
2007 Ky. Acts ch. 85, sec. 328, effective June 26, 2007. -- Created 2002 Ky.
Acts ch. 154, sec. 10, effective July 15, 2002.
Legislative Research Commission Note (4/8/2016). 2016 Ky. Acts ch. 58, sec. 11
provided that that Act shall be known as the Sexual Assault Forensic Evidence
(SAFE) Act of 2016. This statute was amended in Section 10 of that Act.
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