Current through Register Vol. 46, No. 12, March 20, 2024
(a) An
individual with a convicted offender DNA profile that has been included in the
offender index of the DNA databank or an individual with a subject DNA profile
that has been included in the offender index of the DNA databank pursuant to a
plea agreement may request expungement on the grounds that the conviction which
formed the basis for such inclusion in the DNA databank was reversed or vacated
or a pardon was granted. An individual shall provide the request in writing to
the division along with a certified copy of the final court order reversing or
vacating the conviction or a certified copy of the pardon. Upon receipt of such
request for expungement:
(1) the division
shall verify whether a DNA sample was ever collected from an individual with
personal identifying data which corresponds with information provided in this
subdivision. If needed, the division shall use other computerized databases
within the authority of the division to assist in fulfilling the subject's
request;
(2) if no record is found
using this information, or if there is any discrepancy discovered in the
information submitted by the subject or his or her representative in the
request, the division shall notify the subject in writing within 30 business
days, setting forth reasons why documents were not returned and requesting
additional information, if appropriate, by certified or registered mail return
receipt requested. For purposes of this section, DNA record
shall refer to the DNA record relating to the subject's conviction which has
been reversed or vacated or which a pardon has been granted and for which
expungement has been requested. Only the DNA records relating to the conviction
that has been reversed or for which a pardon was granted shall be subject to
these expungement procedures;
(3)
if a record is found for the identified subject in the DNA databank and no
discrepancies are identified in the submitted information, the division shall
determine the location and extent of all documents related to the subject's DNA
record. The list of documents identified in this search will be communicated by
the division to the subject in writing within 30 days of the notification of
need for expungement, by return receipt requested mail. In this same letter,
the division shall define for the subject the expected time needed to obtain
all copies of all documents to be returned to the subject. The time to obtain
and return these records to the subject shall not exceed 120 days from the date
of notification of the need for expungement;
(4) the division shall thereafter obtain all
documents related to the subject's DNA databank record. After insuring that all
documents, and all copies thereof, have been obtained, these records shall be
catalogued and any DNA sample(s) obtained in connection with the subject
conviction shall be destroyed. These documents, if applicable, shall be
forwarded to the subject of the expungement using return receipt requested
mail;
(5) the catalogue of the
documents returned to the subject or the subject's representative shall be
maintained, with documentation of notification of the need for expungement and
all related correspondence between the division and the subject, in a file at
the division. After completion of all activities by the division related to
this expungement, this file shall be sealed and maintained by the division for
a period of three years and shall not be opened except pursuant to an order of
a court of competent jurisdiction; and
(6) at the end of this three-year period, the
sealed file shall be disposed in accordance with the requirements of the State
Archives and Records Administration (SARA) procedures.
(b) An individual with a subject DNA profile
that has been included in the offender index of the DNA databank as a condition
for participation in a temporary release, CASAT, or shock incarceration
program; or as a condition of release on parole, post-release, supervision,
presumptive release, or conditional release on a definite or indeterminate
sentence; or as a condition of probation or interim probation supervision may
request expungement on the grounds that he or she no longer participates in a
temporary release, CASAT, or shock incarceration program; or is no longer under
the jurisdiction of the Division of Parole; or under probation supervision. An
individual shall provide the request in writing to the division along with
documentation sufficient to substantiate the request for expungement. Upon
receipt of such request for expungement:
(1)
the division shall verify that the subject is no longer participating in a
temporary release program, CASAT, or shock incarceration program; is no longer
under the jurisdiction of the Division of Parole; or no longer under probation
supervision, as applicable. If needed, the division shall use computerized
databases within the authority of the division to assist in fulfilling the
subject's request. If the division verifies that the subject is no longer
participating in a temporary release, CASAT, or shock incarceration program;
under the jurisdiction of the Division of Parole; or under probation
supervision, it shall obtain all documents related to the subject's DNA
databank record. After insuring that all documents, and all copies thereof,
have been obtained, these records shall be catalogued and any DNA sample
obtained in connection with the subject conviction shall be destroyed. These
documents shall be forwarded to the subject of the expungement using return
receipt requested mail; and
(2) the
catalogue of the documents returned to the subject or the subject's
representative shall be maintained, with documentation of notification of the
need for expungement and all related correspondence between the division and
the subject, in a file at the division. After completion of all activities by
the division related to this expungement, this file shall be sealed and
maintained by the division for a period of three years and shall not be opened
except pursuant to an order of a court of competent jurisdiction; and
(3) at the end of this three-year period, the
sealed file shall be disposed in accordance with the requirements of the State
Archives and Records Administration (SARA) procedures.