The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Fiscal Policy
BILL: CS/CS/CS/SB 764
INTRODUCER: Fiscal Policy Committee; Appropriations Committee on Criminal and Civil Justice;
Criminal Justice Committee; and Senator Stewart
SUBJECT: Retention of Sexual Offense Evidence
DATE: February 23, 2024 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Cellon Stokes CJ Fav/CS
2. Kolich Harkness ACJ Fav/CS
3. Cellon Yeatman FP Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/CS/SB 764 amends s. 943.326(3), F.S., to specify parameters for the storage of sexual
assault evidence kits (SAKs). Kits that are collected from alleged victims of a sexual offense
who does not report the sexual offense to law enforcement during the forensic physical
examination and does not request to have the evidence tested, must be retained for a minimum of
50 years.1 The bill requires that:
The medical facility or certified rape crisis center that collected the kit must transfer the SAK
to the Florida Department of Law Enforcement (FDLE) within 30 days after the collection
date; and
The FDLE must store the evidence anonymously, in a secure environmentally safe manner,
and with a documented chain of custody.
If, at any time following the initial retention of a SAK an alleged victim reports the crime to law
enforcement or requests testing of the evidence and if the applicable time limitation under
s. 775.15, F.S., has not expired and a criminal prosecution may still be commenced, the
previously collected SAK evidence will be retained in a secure, environmentally safe manner
until the prosecuting agency has approved destruction. However, if the time limitation has
1
Note that if the alleged victim is a minor, the alleged victim’s parent, guardian, or legal representative can request to have
the SAK evidence tested as can the alleged victim’s personal representative, if the alleged victim is deceased. An alleged
victim or, if applicable, the person representing the alleged victim must be informed of the purpose of submitting evidence
for testing and the right to request testing. Section 943.326(1)(b) and (2), F.S.
BILL: CS/CS/CS/SB 764 Page 2
expired and a criminal prosecution may not be commenced, the kit must be stored in a secure,
environmentally safe manner until the department has approved its destruction.
This bill does not have a fiscal impact on state government. See Part V. Fiscal Impact Statement.
The bill becomes effective July 1, 2024.
II. Present Situation:
Tracking Sexual Assault Evidence Kits
In 2021, the Florida Department of Law Enforcement (FDLE) began creating, implementing, and
maintaining a statewide database, the purpose of which is to track the location, processing status,
and storage of sexual assault evidence kits (SAKs).2 As of July 2023, all 67 counties were using
the database and 1,602 SAKs were being tracked at that time.3 Law enforcement agencies,
medical facilities, crime laboratories, and any other facilities in the chain of custody of the SAKs
are required to participate in the statewide database.4
An alleged victim5 who has reported the offense to law enforcement and who provides the SAK
evidence during the forensic physical examination has the ability to access the statewide
database.6 The reporting alleged victim can follow his or her SAK from the collection site
(typically a medical facility),7 to law enforcement agency storage, then to the crime laboratory
for forensic testing and possible destruction after testing, or back to law enforcement agency
storage.8
A SAK collected from an alleged victim who chooses not to report the sexual offense to law
enforcement is not sent from the medical facility to law enforcement for testing.9 A SAK must be
retained in a secure, environmentally safe manner until the prosecuting agency has approved its
destruction.10 Section 943.326(3), F.S., does not currently delineate between a SAK collected
from a reporting victim and a SAK collected from a non-reporting victim.
2
Chapter 2021-213, L.O.F., s. 943.326(4)(c), F.S.; A SAK is defined by FDLE rule as a Florida sexual offense evidence kit
or other sealed package containing samples collected from the alleged victim’s body. Rule 11D-12.001, F.A.C.
3
Information provided by FDLE via e-mail dated September 5, 2023 (on file with the Senate Criminal Justice Committee).
4
Section 943.326(4)(d), F.S.
5
If the alleged victim is a minor the alleged victim’s parent, guardian, or legal representative can request to have the SAK
evidence tested as can the alleged victim’s personal representative, if the alleged victim is deceased. An alleged victim or, if
applicable, the person representing the alleged victim must be informed of the purpose of submitting evidence for testing and
the right to request testing. Sections 943.326(1)(b), and (2), F.S.
6
If the alleged victim is a minor, his or her parent, guardian, or legal representative will have access to the database. If the
alleged victim is deceased, his or her personal representative will have access. Section 943.326(4)(c) and (e), F.S.
7
Section 943.326(4)(c), F.S.
8
Section 943.326(4)(c) and (e), F.S.
9
For a Florida Department of Law Enforcement (FDLE) or regional county laboratory to process evidence from a SAK, there
must be an accompanying law enforcement report. Non-reporting SAKs will not be tested pursuant to s. 943.326, F.S., unless
an alleged victim converts from a non-reporting victim to one who makes a report to law enforcement. To test a non-
reporting SAK would violate the confidentiality and privacy of the victim’s health records under the Health Insurance
Portability and Accountability Act (HIPAA). FDLE Sexual Assault Kit Submissions Frequently Asked Questions, available
at https://www.fdle.state.fl.us/Forensics/Documents/Sexual-Assault-Kit-FAQs-for-LEA_Final.aspx (last visited
December 29, 2023).
10
Section 943.326(3), F.S.
BILL: CS/CS/CS/SB 764 Page 3
Time Limitations for Prosecution
The statutes of limitation (SOL) determine the timeframe within which a criminal prosecution
must be initiated by a prosecutor.11 The SOL in effect at the time a crime is committed
controls.12 In general, the timeframe is calculated from the day after a person commits an offense
to the filing of a charging document, such as an indictment or information, which initiates the
prosecution.13
Regardless of whether a charging document is filed, the time limitation does not run during any
time an offender is continuously absent from the state or otherwise undiscoverable because he or
she lacks a reasonably ascertainable home address or place of employment; however, an
extension under this scenario may not exceed the normal time limitation by more than three
years.14
The standard time limitations for the following crimes are:
Four years for a first-degree felony.15
Three years for a second or third-degree felony.16
Two years for a first-degree misdemeanor.17
One year for a second-degree misdemeanor.18
Capital felonies, life felonies, and felonies resulting in a death are not subject to time constraints,
and the state may bring charges at any time.19
Exceptions to the Standard SOL for Sexual Battery Offenses
Florida extends or removes time limitations or changes the date on which the calculation of the
SOL begins for specified sexual offenses.20
Pursuant to s. 775.15, F.S., the following SOLs apply to sexual battery prosecutions:
Prosecution may be commenced at any time, for a specified:
o Sexual battery involving a victim under 16;21
11
Section 775.15, F.S.
12
The statute of limitations to be used in determining whether a prosecution is timely is the one that is in effect at the time of
the crime. State v. Wadsworth, 293 So.2d 345 (Fla.1974).
13
Section 775.15(3) and (4), F.S.
14
Section 775.15(5), F.S.
15
Section 775.15(2)(a), F.S.
16
Section 775.15(2)(b), F.S.
17
Section 775.15(2)(c), F.S.
18
Section 775.15(2)(d), F.S.
19
Section 775.15(1), F.S.
20
An extension of a particular crime’s SOL does not violate the ex post facto clause of the Florida Constitution if the
extension takes effect before prosecution of an offense is barred by the old SOL and the new SOL clearly indicates it applies
to cases pending upon its effective date. s. 10, art. I, Fla. Const.; Andrews v. State, 392 So. 2d 270, 271 (Fla. 2d DCA 1980);
The statute of limitations to be used in determining whether a prosecution is timely is the one that is in effect at the time of
the crime. State v. Wadsworth, 293 So.2d 345 (Fla.1974).
21
Prosecution must not have been barred by s. 775.15(2), F.S., on or before July 1, 2010. Section 775.15(13)(c), F.S.
BILL: CS/CS/CS/SB 764 Page 4
o Sexual battery involving a victim under 18;22
o First-degree felony sexual battery involving a victim under 18;23
o First or second-degree felony sexual battery involving a victim less than 18 years of age,
if the offense is reported within 72 hours of the commission of the offense.24
o First or second-degree felony violations of sexual battery involving a victim who is 16
years of age or older at the time of the offense if the offense is reported within 72 hours
of the commission of the offense.25
Prosecution of a specified first- or second-degree felony sexual battery involving a victim 16
or older must be commenced within 8 years, if the offense is not reported within 72 hours of
the commission of the offense.26
III. Effect of Proposed Changes:
The bill amends s. 943.326(3), F.S., to specify parameters for the storage of sexual assault
evidence kits (SAKs). Kits that are collected from alleged victims of a sexual offense who does
not report the sexual offense to law enforcement during the forensic physical examination and
does not request to have the evidence tested, must be retained for a minimum of 50 years.27 The
bill requires that:
The medical facility or certified rape crisis center that collected the kit must transfer the SAK
to the Florida Department of Law Enforcement (FDLE) within 30 days after the collection
date; and
The FDLE must store the evidence anonymously, in a secure environmentally safe manner,
and with a documented chain of custody.
The 50-year DNA retention limitation for possible DNA evidence in non-reported sexual
offenses provides a date certain for evidence disposal by the department while allowing a non-
reporting alleged victim time to decide to report the sexual offense.
The anonymous storage of the possible DNA evidence complies with HIPPA by preserving the
confidentiality and privacy of the alleged victim’s health records.28 Requiring that the
evidentiary chain of custody remain unbroken is beneficial to the admissibility of the evidence in
court should the alleged non-reporting victim decide to report the sexual offense.
If, at any time following the initial retention of a SAK an alleged victim reports the crime to law
enforcement or requests testing of the evidence and if the applicable time limitation under
s. 775.15, F.S., has not expired and a criminal prosecution may still be commenced, the
previously collected SAK evidence will be retained in a secure, environmentally safe manner
until the prosecuting agency has approved destruction. However, if the time limitation has
22
Prosecution must not have been barred by s. 775.15(2), F.S., on or before July 1, 2020. Section 775.15(20), F.S.
23
Prosecution must not have been barred by s. 775.15(2), F.S., on or before October 1, 2003. Section 775.15(13)(b), F.S.
24
Prosecution must not have been barred by s. 775.15(2), F.S., on or before December 31, 1984. Section 775.15(13)(a), F.S.
25
Section 775.15(14)(a), F.S.
26
Prosecution must not have been barred by s. 775.15(2), F.S., on or before July 1, 2015. Section 775.15(14)(b), F.S.
27
Note that if the alleged victim is a minor, the alleged victim’s parent, guardian, or legal representative can request to have
the SAK evidence tested as can the alleged victim’s personal representative, if the alleged victim is deceased. An alleged
victim or, if applicable, the person representing the alleged victim must be informed of the purpose of submitting evidence
for testing and the right to request testing. Section 943.326(1)(b) and (2), F.S.
28
The Health Insurance Portability and Accountability Act.
BILL: CS/CS/CS/SB 764 Page 5
expired and a criminal prosecution may not be commenced, the kit must be stored in a secure,
environmentally safe manner until the department has approved its destruction.
The bill becomes effective July 1, 2024.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
BILL: CS/CS/CS/SB 764 Page 6
VIII. Statutes Affected:
This bill substantially amends section 943.326 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS/CS/CS by Fiscal Policy on February 22, 2024:
The committee substitute:
Provides for the transfer of a sexual offense evidence kit from the medical facility or
certified rape crisis center that collected the kit to the department within 30 days after
the collection date.
Provides that if the alleged victim (or another in compliance with s. 943.326(1)(b),
F.S.,) elects to report the crime to law enforcement, the previously collected SAK
evidence will be retained if the applicable time limitation under s. 775.15, F.S., has
not expired and a criminal prosecution may still be commenced.
Specifies that if the time limitation has expired and a criminal prosecution may not be
commenced, the kit must be stored in a secure, environmentally safe manner until the
department has approved its destruction.
CS/CS by Appropriations Committee on Criminal and Civil Justice on February 8,
2024:
The committee substitute increases the retention time to 50 years for a sexual offense
evidence kit collected from a non-reporting victim in s. 943.326(3)(b)1., F.S.
CS by Criminal Justice on January 10, 2024:
The committee substitute:
Clarifies the length of time and conditions within which a sexual offense evidence kit
collected from a reporting victim must be retained in s. 943.326(3)(a), F.S.
Specifies the manner and length of time a sexual offense evidence kit collected from a
non-reporting victim must be retained in s. 943.326(3)(b)1., F.S.
Provides that a sexual offense evidence kit collected from a non-reporting victim who
decides to report the offense to law enforcement before the 8-year kit retention period
expires will be retained until the prosecuting agency has approved its destruction in
s. 943.326(3)(b)2., F.S.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
Statutes affected: S 764 Filed: 943.326
S 764 c1: 943.326
S 764 c2: 943.32