SB 187
Department of Legislative Services
Maryland General Assembly
2021 Session
FISCAL AND POLICY NOTE
Third Reader - Revised
Senate Bill 187 (Senator Sydnor)
Judicial Proceedings Judiciary
Criminal Procedure – Forensic Genetic Genealogical DNA Analysis, Searching,
Regulation, and Oversight
This bill establishes requirements and procedures for forensic genetic genealogical DNA
analysis and related searches of publicly accessible databases using genetic profiles. The
bill also includes provisions regarding regulation and oversight of testing connected to this
analysis and direct-to-consumer genetic genealogy services.
Fiscal Summary
State Effect: General fund expenditures for the Maryland Department of Health (MDH)
increase by an indeterminate, but likely significant, amount beginning in FY 2022, as
discussed below. Potential increase in general fund expenditures for the Governor’s Office
of Crime Prevention, Youth, and Victim Services (GOCPYVS), as discussed below.
Revenues are not materially affected.
Local Effect: Potential increase in local expenditures to comply with the bill’s
requirements. Revenues are not materially affected.
Small Business Effect: None.
Analysis
Bill Summary: “Forensic genetic genealogical DNA analysis and search” or “FGGS”
means the forensic genetic genealogical DNA analysis of biological material using
single-nucleotide polymorphisms or other sequencing techniques to develop an “FGG
profile”; a subsequent search using the FGG profile in a publicly available open-data
personal genomics database or a direct-to-consumer genetic genealogy service to find
individuals related to the source of the FGG profile; and a genealogical search using public
records and other lawful means to obtain information in accordance with the bill’s
provisions.
Prohibitions and Judicial Authorization of FGGS: The bill prohibits law enforcement from
initiating FGGS without first obtaining judicial authorization and certifying before the
court that the forensic sample and the criminal case meet specified criteria. If an FGGS is
certified in accordance with the bill, the court must authorize the initiation of the FGGS.
As part of this process, a law enforcement agent must submit a sworn affidavit, with
prosecutorial approval, asserting specified facts regarding the crime being investigated,
testing that has already been conducted on the forensic sample, and the progress of the
investigation. The bill restricts FGGS to direct-to-consumer or publicly available open-
data personal genomics databases meeting specified notice requirements. The bill
establishes informed consent requirements that must be met before law enforcement can
obtain a DNA sample from a third party to assist in FGGS. Law enforcement may not
collect a covert reference sample for an FGGS investigation from any third-party individual
who has refused consent. However, investigators may seek authorization to obtain a covert
sample from a third party if obtaining informed consent from the third party presents
specified risks to the investigation and the third party has not already refused informed
consent. The fear that a third party will refuse informed consent may not constitute the
basis for seeking a covert sample. The person obtaining the informed consent must have
training from a genetic counselor approved by the Office of Health Care Quality (OHCQ),
as specified.
Collection of Covert DNA Samples by Law Enforcement: The bill requires law
enforcement seeking to collect a covert DNA sample from a potential putative perpetrator
or a third party to meet specified criteria, including (1) required notification to the
authorizing court prior to collection of the covert sample; (2) with respect to a covert
sample from a third party, an affidavit submitted by investigative authorities to the court
that seeking informed consent from a third party presents specified risks to the
investigation; and (3) a proffer by investigative authorities to the court of their plan to
collect the sample without unduly intrusive surveillance and invasions of privacy. The bill
also specifies requirements regarding testing, use, and destruction of the sample. The law
enforcement officer conducting the covert collection must report back to the court every
30 days about the progress of the covert collection, as specified. Absent a showing of good
cause, efforts to collect a covert sample must cease after six months.
Required Destruction of DNA Samples and Prohibited Disclosures: The bill (1) requires
DNA samples and genetic genealogy information to be destroyed in compliance with
specified requirements; (2) requires a genetic genealogist participating in an FGGS to turn
over to investigators all records and materials collected in the course of the FGGS on the
completion of an FGGS investigation, prohibits a genetic genealogist from keeping any
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records or materials, and requires a genetic genealogist to ensure that specified records
have been deleted or removed from any FGG website; and (3) requires the prosecutor to
retain and disclose any records or materials as required under the Maryland Constitution,
U.S. Constitution, and the rules of discovery under Maryland Rules 4-262 and 4-263, but
prohibits the prosecutor from otherwise using or sharing the records or materials. A person
who discloses genealogical or DNA information without authorization of a court order is
guilty of a misdemeanor, punishable by imprisonment for up to five years and/or a $5,000
maximum fine. A person who willfully fails to destroy DNA and genetic information as
required under the bill is guilty of a misdemeanor, punishable by imprisonment for up to
one year and/or a $1,000 maximum fine. The bill also establishes a private right of action
under State law guiding tort claims for a person whose genetic genealogy information,
DNA sample, or genetic profile is wrongfully disclosed, collected, or maintained. The
person is entitled to minimum liquidated damages of $5,000 for a violation.
Requests for FGGS by Defendants: A defendant charged with a crime of violence or
convicted of a crime of violence who seeks postconviction DNA testing is entitled to seek
judicial authorization for an FGGS by filing an affidavit with an appropriate court
certifying that specified factors are met. The State must be notified of a defendant’s
application for judicial authorization for an FGGS, and the bill establishes related
procedural requirements. A court must issue the order for an FGGS on a showing that
testing has the scientific potential to produce exculpatory or mitigating evidence and the
defendant has complied with all other requirements related to the authorization for an
FGGS.
If defense counsel or a postconviction counsel determines that one or more persons are
putative perpetrators and there is a need for collection of covert DNA samples from a
putative perpetrator or a third party, the authorizing court must be notified prior to
collection of the sample and specified procedural requirements must be met. The bill’s
requirements regarding destruction of DNA samples and related information and
prohibited disclosures of information also apply to an FGGS conducted on behalf of a
defendant.
Certification and Regulation of Services and Laboratories: The bill requires OHCQ in
MDH to (1) establish a licensing program for laboratories performing “SNP” or other
sequencing based testing on evidence in support of an FGGS by October 1, 2022, and
(2) establish a licensing program for individuals performing genetic genealogy by
October 1, 2024. Prohibitions may not be placed on any laboratory conducting specified
types of testing or on genetic genealogists participating in an FGGS before the relevant
required licensing program is established. However, laboratories and genetic genealogists
must apply for the required license within one year after OHCQ establishes the relevant
licensing program.
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OHCQ must also develop a training program on obtaining informed consent for a DNA
sample from a third party and identify and approve one or more genetic counselors to
administer the training. The bill also requires the Maryland Forensic Laboratory Advisory
Committee to perform related functions, as specified.
Annual Report: By June 1 annually, GOCPYVS must submit a publicly available report
on the number of requests for FGGS and related information to the Governor and the
General Assembly. A panel that includes specified stakeholders must review the report
each year and make policy recommendations.
Current Law:
Statewide DNA Database System, DNA Samples, State Police Crime Laboratory, Etc.
The statewide DNA database system consists of DNA samples collected from individuals
convicted of a felony, fourth-degree burglary, or breaking and entering a vehicle. DNA
samples for individuals charged with a “crime of violence” or felony burglary or an attempt
to commit those crimes are also included within the statewide database. State law defines
a “crime of violence” to include several specific crimes, including abduction, arson,
kidnapping, manslaughter, murder, rape, carjacking, first- or second-degree sexual offense,
and various types of assault.
The State Police Crime Laboratory is required to store and maintain each DNA
identification record in the statewide DNA database. Matches between evidence samples
and database entries may only be used as probable cause and are not admissible at trial
unless confirmed by additional testing.
A person is prohibited from performing a search of the statewide database for the purpose
of the identification of an offender in connection with a crime for which the offender may
be a biological relative of the individual from whom the DNA sample was acquired.
A person may not willfully test a DNA sample for information that does not relate to the
authorized identification of an individual, as specified. A violation is punishable by up to
five years imprisonment and/or a $5,000 fine. In addition, a person is prohibited from
willfully failing to destroy a DNA sample for which notification has been sent stating that
the DNA sample has been destroyed or for which destruction has been ordered. Violators
are subject to imprisonment of up to one year or a maximum fine of $1,000.
The Department of State Police (DSP) is required to submit an annual report to the
Governor and the General Assembly on the status of the statewide DNA database system.
Local law enforcement agencies are required to annually report related information to DSP.
Statute outlines the required contents of the annual report.
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Forensic Laboratories
Chapter 147 of 2007 required the Secretary of Health to adopt regulations that set standards
and requirements for forensic laboratories. In addition, to assure compliance with these
standards and requirements, the Secretary must conduct (1) an inspection of each forensic
laboratory for which a license to operate is sought and (2) an inspection of each forensic
laboratory for which a license has been issued. Chapter 147 also established the Maryland
Forensic Laboratory Advisory Committee to advise the Secretary on matters relating to the
implementation of specified provisions of law related to forensic laboratories.
OHCQ’s Forensic Laboratory Unit oversees the regulation of accredited and nonaccredited
laboratories that perform forensic analyses. Responsibilities of the unit include
investigating complaints related to the laboratories; conducting annual surveys and revisit
surveys of nonaccredited forensic laboratories; reviewing all self-reported incidents that
occur at both accredited and nonaccredited laboratories; reviewing all proficiency tests
administered at the forensic laboratories; and all associated activities required for licensure,
including on-site inspection and review of documentation from the forensic laboratories
and external accreditation organizations.
State Expenditures: General fund expenditures for MDH increase by an indeterminate,
but likely significant, amount beginning in FY 2022. General fund expenditures may
increase for GOCPYVS to comply with the bill’s reporting requirements.
Maryland Department of Health
The bill requires OHCQ to (1) establish a new licensing program for laboratories that
complete forensic genetic genealogical DNA analysis and (2) create a licensing program
for individuals performing genetic genealogy.
MDH advises that the licensing program for genetic genealogical laboratories under the
bill would be the first of its kind, since there are currently no accreditation organizations
or other jurisdictions that license these laboratories. MDH further advises that OHCQ has
historically partnered with local jurisdictions or accreditation organizations to license
laboratories outside of Maryland that analyze or process Maryland samples. However,
since there are no accreditation organizations or jurisdictions that license these types of
laboratories, OHCQ needs to visit and license all forensic genetic genealogical laboratories
that process and analyze Maryland samples. MDH notes that based on its research, there
are 48 of these laboratories located throughout the world, and none of these laboratories is
located in Maryland.
MDH estimates costs of approximately $279,000 in fiscal 2022 and approximately
$241,000 annually by fiscal 2026 for compliance with the bill’s licensing requirements.
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This estimate includes travel expenses, one-time start-up costs and ongoing operating
expenditures, and the addition of two additional highly specialized staff (with annual
salaries and fringe benefits totaling approximately $200,000 per year) to establish and
maintain the licensing programs under the bill. MDH incurs additional indeterminate
expenditures to develop a training program for informed consent and to identify and
approve at least one genetic counselor to administer the training.
The Department of Legislative Services agrees that there is a need for potentially
significant additional resources, but advises that, without actual experience under the bill,
it is impossible to determine a reliable estimate as no other entities, including federal and
state governments, currently regulate laboratories specifically for forensic genetic
genealogical DNA analysis. Furthermore, it is unclear what level of interest laboratories
will have in obtaining Maryland-specific licensure.
Governor’s Office of Crime Prevention, Youth, and Victim Services
The bill requires GOCPYVS to prepare and submit an annual report regarding requests for
forensic genetic genealogical analysis and engage with a panel of stakeholders tasked with
reviewing the report each year and making policy recommendations. To the extent that
GOCPYVS requires additional resources to comply with the bill’s requirements,
general fund expenditures for GOCPYVS increase. Such resources likely include the
development and maintenance of a database for law enforcement and potentially a staff
person to report FGGS-related activities and prepare the annual report, including
collaboration with stakeholders. However, without information regarding how often law
enforcement agencies use FGGS, the level of need for additional resources cannot be
reliably validated beforehand.
Local Expenditures: Local expenditures may increase for local law enforcement agencies
and affiliated entities to comply with the bill’s requirements. Based on information
provided by local governments, the fiscal impact of the bill cannot be quantified in
advance. Examples of potential costs cited in local responses include increased testing to
comply with the bill’s procedural requirements, expert testimony, training, and compliance
assurance.
Additional Information
Prior Introductions: None.
Designated Cross File: HB 240 (Delegate Shetty) - Judiciary.
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Information Source(s): Maryland Commission on Civil Rights; Anne Arundel, Charles,
Frederick, and Montgomery counties; City of Havre de Grace; Maryland State Commission
on Criminal Sentencing Policy; Judiciary (Administrative Office of the Courts); Office of
the Public Defender; Department of Public Safety and Correctional Services; Maryland
Department of Health; Governor’s Office of Crime Prevention, Youth, and Victim
Services; Department of State Police; Department of Legislative Services
Fiscal Note History: First Reader - February 2, 2021
an/jkb Third Reader - April 6, 2021
Revised - Amendment(s) - April 6, 2021
Revised - Updated Information - April 6, 2021
Analysis by: Amy A. Devadas Direct Inquiries to:
(410) 946-5510
(301) 970-5510
SB 187/ Page 7


Statutes affected:
Text - First - Criminal Procedure – Forensic Genetic Genealogical DNA Analysis, Searching, Regulation, and Oversight: 17-101 Criminal Procedure, 17-102 Criminal Procedure, 17-104 Criminal Procedure, 17-103 Criminal Procedure, 17-104 Criminal Procedure, 17-105 Criminal Procedure
Text - Third - Criminal Procedure – Forensic Genetic Genealogical DNA Analysis, Searching, Regulation, and Oversight: 17-101 Criminal Procedure, 17-102 Criminal Procedure, 17-104 Criminal Procedure, 17-103 Criminal Procedure, 17-102 Criminal Procedure, 17-104 Criminal Procedure, 17-105 Criminal Procedure