Bill Summary – FastDemocracy

Enrolled Copy                                                                         S.B. 156
                         INVESTIGATIVE GENETIC GENEALOGY
                                          MODIFICATIONS
                                        2023 GENERAL SESSION
                                            STATE OF UTAH
                                 Chief Sponsor: Todd D. Weiler
                                    House Sponsor: Steve Eliason
 7
 LONG TITLE
 General Description:
        This bill concerns the use of investigative genetic genealogy.
 Highlighted Provisions:
        This bill:
        < defines and modifies terms;
        < establishes requirements that a law enforcement agency is required to meet in order
 to:
            C   request an investigative genetic genealogy service or a genetic genealogy
 database utilization from a genetic genealogy company or the Bureau of
 Forensic Services; and
            C   obtain and process a third-party DNA specimen for information regarding the
 third-party individual's potential biological relatives;
        < provides limitations on:
            C   arrests and charges based on certain types of genetic information; and
            C   uses of certain genetic information;
        < establishes procedural requirements for retention and destruction of certain types of
 genetic information;
        < establishes remedies for certain law enforcement investigation violations;
        < establishes law enforcement reporting requirements for certain investigative genetic
 genealogy database utilizations;
        < requires the State Commission on Criminal and Juvenile Justice to receive, compile,
       S.B. 156                                                                    Enrolled Copy
 and publish data concerning certain law enforcement genetic genealogy utilizations;
        < creates provisions concerning postconviction relief involving an investigative
 genetic genealogy service or a genetic genealogy database utilization; and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:
 AMENDS:
        53-10-403.5, as last amended by Laws of Utah 2020, Chapter 415
        63M-7-204, as last amended by Laws of Utah 2022, Chapter 187
        78B-9-301, as last amended by Laws of Utah 2022, Chapter 274
 ENACTS:
        53-10-403.7, Utah Code Annotated 1953
        53-22-101, Utah Code Annotated 1953
 REPEALS:
        78B-9-300, as enacted by Laws of Utah 2008, Chapter 358
48
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 53-10-403.5 is amended to read:
        53-10-403.5. Definitions.
        As used in Sections 53-10-403, 53-10-403.7, 53-10-404, 53-10-404.5, 53-10-405, and
 53-10-406:
        (1) "Bureau" means the Bureau of Forensic Services.
        (2) "Combined DNA Index System" or "CODIS" means the program operated by the
 Federal Bureau of Investigation to support criminal justice DNA databases and the software
 used to run the databases.
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       Enrolled Copy                                                                            S.B. 156
            (3) "Conviction" means:
            (a) a verdict or conviction;
            (b) a plea of guilty or guilty and mentally ill;
            (c) a plea of no contest; or
            (d) the acceptance by the court of a plea in abeyance.
            (4) "DNA" means deoxyribonucleic acid.
            (5) "DNA profile" means the patterns of fragments of DNA used to identify an
 individual.
            [(5)] (6) "DNA specimen" or "specimen" means a biological sample [of a person's
 saliva or blood, a biological sample] collected from an individual or a crime scene, or [a
 sample] that is collected as part of an investigation.
            [(6)] (7) "Final judgment" means a judgment, including any supporting opinion,
 concerning which all appellate remedies have been exhausted or the time for appeal has
 expired.
            [(7)] (8) "Rapid DNA" means the fully automated process of developing a DNA
 profile.
            [(8)] (9) "Violent felony" means any offense under Section 76-3-203.5.
            Section 2. Section 53-10-403.7 is enacted to read:
            53-10-403.7. Investigative genetic genealogy service -- Genetic genealogy database
 utilization -- Third-party specimens -- Requirements.
            (1) As used in this section:
            (a) "Genetic genealogy company" means a company that provides a genetic genealogy
 database utilization or an investigative genetic genealogy service.
            (b) "Genetic genealogy database utilization" means a utilization of a genetic
 genealogical database for the purpose of identifying potential biological relatives to a DNA
 profile.
            (c) "Genetic information" means data acquired from an analysis of a DNA specimen.
            (d) "Investigative genetic genealogy service" means the processing of an individual's
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        S.B. 156                                                                         Enrolled Copy
 DNA specimen or genetic data file to be used for a genetic genealogy database utilization.
         (e) "Prosecuting agency" means the Office of the Attorney General or the office of a
 county attorney or district attorney, including an attorney on the staff, whether acting in a civil
 or criminal capacity.
         (f) "Qualifying case" means an investigation of:
         (i) a violent felony; or
         (ii) the identity of a missing or unknown individual.
         (g) "Third-party DNA specimen" means a DNA specimen obtained from an individual
 who is not a likely suspect in an investigation.
         (2) A law enforcement agency may request an investigative genetic genealogy service
 or a genetic genealogy database utilization from the bureau or a genetic genealogy company if:
         (a) (i) the law enforcement agency, through the law enforcement agency's investigation,
 has a DNA profile from forensic evidence that the law enforcement agency reasonably believes
 is attributable to:
         (A) the perpetrator of a crime;
         (B) the remains of an unidentified individual; or
         (C) a missing or unknown individual;
         (ii) the case for which the law enforcement agency requires the information is a
 qualifying case;
         (iii) a routine search of CODIS-eligible profiles, if any, developed in the case revealed
 no DNA matches to the DNA profile;
         (iv) the law enforcement agency, the bureau, and the prosecuting agency consult
 regarding whether an investigative genetic genealogy service or genetic genealogy database
 utilization is an appropriate and necessary step in the development of information that may
 contribute to solving the case; and
         (v) the law enforcement agency and prosecuting agency commit to further investigation
 of the case if the investigative genetic genealogy service or genetic genealogy database
 utilization produces information that may contribute to solving the case; or
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       Enrolled Copy                                                                           S.B. 156
        (b) ordered by a court in accordance with a postconviction relief proceeding under
 Section 78B-9-301.
        (3) (a) Before a law enforcement agency may collect a third-party DNA specimen for
 the purpose of obtaining an investigative genetic genealogy service or a genetic genealogy
 database utilization, the law enforcement agency shall:
        (i) consult with the prosecuting agency; and
        (ii) (A) obtain informed, voluntary consent from the individual providing the
 third-party DNA specimen; or
        (B) if the law enforcement agency concludes that the case-specific circumstances
 provide reasonable grounds to believe that a request for informed, voluntary consent would
 compromise the integrity of the investigation, obtain from the prosecuting agency authorization
 for a covert collection of the third-party DNA specimen.
        (b) Before obtaining a third-party DNA specimen in accordance with Subsection
 (3)(a)(ii)(B), a law enforcement agency shall, if applicable, request the prosecuting agency to
 notify and consult with the prosecuting agency in the jurisdiction in which the sample will be
 covertly collected to ensure that all applicable laws and procedures are followed.
        (c) A law enforcement agency that obtains a DNA specimen in accordance with
 Subsection (3)(a)(ii)(B) shall obtain and process the DNA specimen in a lawful manner
 including, if necessary, obtaining a search warrant.
        (4) A law enforcement agency or a prosecuting agency may only use a third-party DNA
 specimen obtained under Subsection (3) to:
        (a) identify a possible suspect;
        (b) exonerate a possible suspect; or
        (c) identify a missing or unknown individual.
        (5) When requesting an investigative genetic genealogy service or genetic genealogy
 database utilization from a genetic genealogy company under Subsection (2), a law
 enforcement agency shall:
        (a) disclose to the genetic genealogy company that the request is from a law
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        S.B. 156                                                                        Enrolled Copy
 enforcement agency;
        (b) only make a request to a genetic genealogy company that:
        (i) provides notice to the genetic genealogy company's service users and the public that
 law enforcement may use the genetic genealogy company's services to investigate crimes or to
 identify unidentified human remains;
        (ii) allows a user to:
        (A) opt in or out of having the user's data be accessible in an investigation requested by
 law enforcement; and
        (B) access the genetic genealogy company's services even if the user opts out of having
 the user's data be accessible in an investigation requested by law enforcement; and
        (iii) has a policy that prevents the genetic genealogy company from compiling, selling,
 licensing, or transferring to a third party any data generated by the genetic genealogy company
 concerning a victim, crime scene, or suspect;
        (c) confirm that the request is permitted under the terms of service for the genetic
 genealogy company; and
        (d) if possible, configure or request the genetic genealogy company to configure
 service site user settings that control access to the DNA submitted by the law enforcement
 agency and associated account information in a manner that will prevent the information from
 being viewed by other service users.
        (6) (a) Before an individual may be arrested as a suspect in a crime for which an
 investigative genetic genealogy service or genetic genealogy database utilization has been
 conducted under Subsection (2)(a) and the investigative genetic genealogy service or genetic
 genealogy database utilization has aided in the identification of the individual as a suspect, the
 law enforcement agency and the bureau shall verify with confirmatory genetic testing that the
 DNA obtained from the crime scene could have originated from the individual unless the law
 enforcement agency or the prosecuting agency has sufficient evidence outside of the
 investigative genetic genealogy service or genetic genealogy database utilization to
 independently support the individual's arrest.
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        Enrolled Copy                                                                             S.B. 156
        (b) After an individual has been charged with an offense after an investigative genetic
 genealogy service or a genetic genealogy database utilization has been conducted for that
 offense, the law enforcement agency shall:
        (i) if applicable, verify with confirmatory genetic testing that the DNA obtained from
 the crime scene could have originated from the individual;
        (ii) if applicable, make a prompt, formal request to the genetic genealogy company to:
        (A) provide the DNA information and any associated account information related to
 the charged crime directly to the law enforcement agency; and
        (B) remove the DNA information and any associated account information held by the
 genetic genealogy company;
        (iii) if applicable, document the request described in Subsection (6)(b)(ii); and
        (iv) retain the information received from the genetic genealogy company or the bureau
 for use during prosecution and subsequent judicial proceedings.
        (7) A law enforcement agency or a prosecuting agency:
        (a) may not request an investigative genetic genealogy service or a genetic genealogy
 database utilization except as provided in this section;
        (b) shall ensure that genetic information obtained under this section is used only for
 law enforcement purposes or postconviction relief purposes under Section 78B-9-301; and
        (c) shall ensure that a DNA specimen and associated genetic information is:
        (i) retained in conformance with applicable laws; and
        (ii) destroyed once permitted under applicable laws.
        (8) (a) A violation of this section does not confer standing to a criminal defendant to
 request the suppression of evidence unless a court determines that the violation led to a
 deprivation of the defendant's constitutional rights.
        (b) (i) If a court in a civil suit finds that an employee or agent of a law enforcement
 agency knowingly has violated a provision of this section, the court shall order that the
 employee or agent may not participate in another investigative genetic genealogy service or
 genetic genealogy database utilization under this section for one year.
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        S.B. 156                                                                     Enrolled Copy
        (ii) A finding or order under Subsection (8)(b)(i) may not constitute cause for a
 judgment for monetary damages or attorney fees against the state or a governmental entity or an
 individual employed by the state or a governmental entity.
        Section 3. Section 53-22-101 is enacted to read:
         CHAPTER 22. REPORTING REQUIREMENTS FOR GENETIC GENEALOGY
                                       DATABASE UTILIZATIONS
        53-22-101. Law enforcement reporting requirements for genetic genealogy
 database utilizations -- Report.
        (1) As used in this section:
        (a) "Commission" means the State Commission on Criminal and Juvenile Justice
 created in Section 63M-7-201.
        (b) "Genetic genealogy database utilization" means the same as that term is defined in
 Section 53-10-403.7.
        (c) "Law enforcement agency" means the same as that term is defined in Section
 53-1-102.
        (d) "Qualifying case" means the same as that term is defined in Section 53-10-403.7.
        (2) (a) Beginning on January 1, 2024, a law enforcement agency shall annually on or
 before April 30 submit a report to the commission with the following data for the previous
 calendar year:
        (i) the number of genetic genealogy database utilizations requested by the law
 enforcement agency under Section 53-10-403.7; and
        (ii) for each utilization described in Subsection (2)(a)(i):
        (A) if applicable, the type of qualifying case;
        (B) for a criminal investigation, the alleged offense;
        (C) whether the case was a cold case, as that term is defined in Section 53-10-115, at
 the time of the request for the utilization; and
        (D) whether the results of the utilization revealed the identity of the owner of the DNA
 specimen.
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        Enrolled Copy                                                                           S.B. 156
        (b) A law enforcement agency shall compile the report described in Subsection (2)(a)
 for each year in the standardized format developed by the commission under Subsection (4).
        (3) If a genetic genealogy database utilization is requested by a multijurisdictional team
 of law enforcement officers, the reporting requirement in this section is the responsibility of the
 commanding agency or governing authority of the multijurisdictional team.
        (4) The commission shall:
        (a) develop a standardized format for reporting the data described in Subsection (2);
        (b) compile the data submitted under Subsection (2), including the number of genetic
 genealogy database utilizations requested by each reporting law enforcement agency; and
        (c) annually on or before August 1, publish a report of the data described in Subsection
 (2) on the commission's website.
        Section 4. Section 63M-7-204 is amended to read:
        63M-7-204. Duties of commission.
        (1) The State Commission on Criminal and Juvenile Justice administration shall:
        (a) promote the commission's purposes as enumerated in Section 63M-7-201;
        (b) promote the communication and coordinat