Sec. 29.05.01.04. Collecting Samples

A. An individual shall have a DNA sample collected if:

(1) Charged with a crime of violence or an attempt to commit a crime of violence;

(2) Charged with burglary or an attempt to commit burglary;

(3) Convicted of a qualifying crime; or

(4) Ordered by a court.

B. Samples Collected upon Charge.

(1) A DNA sample shall be collected during booking by the sheriff's office, police department, regional jail, or any other entity specified by the Secretary that is responsible for booking upon being charged.

(2) An arrestee sample may not be tested or placed into the Statewide DNA Data Base System before the first scheduled arraignment date.

(3) DNA Sample Processed Before First Scheduled Arraignment Date.

(a) An arrestee may request, by notarized written request to the Director, that the DNA sample be processed before the first scheduled arraignment date for the sole purpose of having the sample checked against a sample that:

(i) Has been processed from the crime scene or the hospital; and

(ii) Is related to the charges against that individual.

(b) The Crime Lab shall process the sample before arraignment, whenever practicable, if time and resources permit.

(4) If the collecting agency determines that a convicted offender Statewide DNA Data Base sample already exists for an arrestee, the agency is not required to obtain a new sample.

(5) A failure to obtain a new sample from an arrestee does not prohibit the obtaining of a sample at a later date if it is determined, for any reason, that a preexisting sample is not in the Statewide DNA Data Base as long as the individual remains eligible for inclusion in the Statewide DNA Data Base System.

(6) At the time of collection of the DNA sample, an arrestee shall be given written notice, by the collecting agency, in a manner prescribed by the Director, that the DNA record may be subject to expungement as provided by Regulation .14 of this chapter.

C. Reasonable force may be used in order to obtain a required arrestee or convicted offender DNA sample.

D. A second DNA sample shall be taken if ordered by the court for good cause shown.

E. The failure of a person, convicted of a qualifying crime and placed on probation, to provide a DNA sample within 90 days of the date of the initial request for a sample shall result in the notification to the Department of Public Safety and Correctional Service's Division of Parole and Probation that a violation of conditions of probation has occurred.

F. For an individual convicted but not sentenced to a term of imprisonment, a sample shall be collected at a facility designated by the Director.

G. The Department of Public Safety and Correctional Services shall:

(1) By the 15th day of each month, provide the Director with a report:

(a) Of the number and the names of the prisoners who were convicted of a qualifying crime and began their incarceration the previous month; or

(b) Indicating that no prisoners began their incarceration the previous month;

(2) Include on the monthly report of those prisoners convicted of a qualifying crime of violence, the prisoner's:

(a) Name;

(b) Race;

(c) Sex;

(d) Date of birth;

(e) State identification (SID);

(f) Specific qualifying crime;

(g) Location of prisoner;

(h) Anticipated release date; and

(3) Identify a Department of Public Safety and Correctional Services employee who, on an ongoing basis, will assist in the DNA sample collection process by coordinating with the appropriate prison official the place, time, and date when the samples will be collected.

H. A county jail administration shall:

(1) By the 15th day of each month, provide the Director with a report:

(a) Of the number and the names of the prisoners who were convicted of a qualifying crime of violence and began their incarceration the previous month; or

(b) Indicating that no prisoners began their incarceration the previous month;

(2) Include on the monthly report of those prisoners convicted of a qualifying crime of violence, the prisoner's:

(a) Name;

(b) Race;

(c) Sex;

(d) Date of birth;

(e) State identification (SID);

(f) Specific qualifying crime;

(g) Location of prisoner;

(h) Anticipated release date; and

(3) Identify a county jail employee who, on an ongoing basis, will assist in the arrestee or convicted offender DNA sample collection process by coordinating with the appropriate prison official the place, time, and date when the samples will be collected.

I. The arrestee or convicted offender DNA samples submitted for analysis shall be collected by an individual who is:

(1) Designated by the Director; and

(2) Trained in the collection procedures that the Crime Laboratory uses.

J. An arrestee or convicted offender DNA sample shall be collected according to the instructions specified by the Director that are included in a DNA data base sample collection kit, approved and provided by the Director.

K. The individual collecting a sample shall verify the identity of the individual from whom a sample is taken by name and, if applicable, State identification (SID) number.

L. If the DNA arrestee sample is not collected at the time of electronic capture, such as LIVE SCAN or electronic booking facility or if an inked ten print card is used, then using normal fingerprinting procedures, the individual from whom a sample is taken shall place both inked index fingers where indicated on the DNA data base information card contained in the collection kit. These prints shall be used by the laboratory to check the individual's identity. If the subject is missing an index finger, this fact shall be indicated in the space for recording the fingerprint and the next available finger should be used with documentation as to which finger was used.

M. Immediately after a sample is obtained it shall be placed in the kit provided, sealed, and within 24 hours, transported or mailed to the Crime Laboratory.

N. The chain of custody portion of the DNA data base information card in the sample kit shall include the date and time a sample was collected and the signature of the individual who collected and sealed the kit.