23-5A-1      Definition of terms.
23-5A-2      Establishment of State DNA Database and State DNA Databank--Purpose--Compatibility with FBI procedures--Capabilities.
23-5A-3      Duties of State Forensic Laboratory.
23-5A-4      Persons convicted or adjudicated delinquent for qualifying offense required to provide DNA sample.
23-5A-5      Persons convicted or adjudicated delinquent for qualifying offense required to provide DNA sample.
23-5A-5.1      Registered sex offenders required to provide DNA sample.
23-5A-5.2      Adult arrested for qualifying offense required to provide DNA sample.
23-5A-6      Incarcerated or supervised persons to provide DNA sample--Release contingent upon provision of sample.
23-5A-7      Interjurisdictional provisions to provide DNA sample.
23-5A-8      Application of this chapter to persons on probation or parole--Application to persons sentenced to death, life or indeterminate sentences--Other application.
23-5A-9      Agencies or institutions may contract with third parties to collect samples.
23-5A-10      Fingerprints to be provided as identification of person.
23-5A-11      DNA samples to be forwarded to State Forensic Laboratory.
23-5A-12      Immunity from liability of persons collecting DNA samples.
23-5A-13      Reasonable force allowed in collection of DNA sample--Immunity from liability.
23-5A-14      Refusal to supply sample a felony.
23-5A-15      Mistaken collection or placement of sample does not invalidate sample's use in database.
23-5A-16      Promulgation of rules for collection, analysis, storage, etc.
23-5A-17      Permissible uses of DNA analyses.
23-5A-18      Uses of DNA samples remaining after analyses.
23-5A-19      Use of analyses performed on persons adjudicated delinquent--Includes adult prosecution.
23-5A-20      Revocation of license of public DNA laboratory.
23-5A-21      Third party contractors--Subject to restrictions and requirements of this chapter.
23-5A-22      Confidentiality of records--Disclosure prohibited.
23-5A-23      Records not public.
23-5A-24      Discovery rules govern access to DNA records.
23-5A-25      Release of record or sample for certain authorized purposes.
23-5A-26      Disclosure to unauthorized person or agency a felony--Unauthorized use or tampering a felony.
23-5A-27      Confidentiality of software and databases used by state laboratory.
23-5A-28      Request for expungement--Grounds.
23-5A-29      Expungement of record--Receipt of court order--Exception.
23-5A-30      Expungement not required if certain other evidence would be destroyed.
23-5A-31      Failure to expunge not grounds for invalidation.
23-5A-32      Liberal construction of chapter--Other laws.

23-5A-1. Definition of terms.

Terms used in this chapter mean:

(1)    "CODIS," the Federal Bureau of Investigation's Combined DNA Index System that allows the storage and exchange of DNA records submitted by federal, state, and local forensic DNA laboratories. The term includes the national DNA identification index administered and operated by the Federal Bureau of Investigation;

(2)    "Conviction," includes a finding of guilt by a jury or a court, guilty plea, plea of nolo contendere, or finding of not guilty by reason of insanity or mental disease or defect. A finding of not guilty by reason of insanity or mental disease or defect is considered a conviction solely for purposes of this chapter insofar as such finding requires a person to provide a DNA sample;

(3)    "Criminal justice agency," an agency or institution of a federal, state, or local government, other than the office of the public defender, which performs as part of its principal function, activities relating to the apprehension, investigation, prosecution, adjudication, incarceration, supervision, or rehabilitation of criminal offenders;

(4)    "DNA," deoxyribonucleic acid;

(5)    "DNA record," the DNA identification information stored in the State DNA Database or CODIS for the purpose of generating investigative leads or supporting statistical interpretation of DNA test results. The DNA record is the result obtained from the DNA analysis. The DNA record is comprised of the characteristics of a DNA sample which are of value in establishing the identity of individuals. The results of all DNA identification analyses on an individual's DNA sample are also collectively referred to as the DNA profile of an individual;

(6)    "DNA sample," a biological sample provided by any person with respect to offenses covered by this chapter or submitted to the South Dakota State Forensic Laboratory pursuant to this chapter for analysis or storage or both;

(7)    "FBI," the Federal Bureau of Investigation;

(8)    "Qualifying offense," any felony offense under the laws of this state, a crime of violence as defined in § 22-1-2 , or a violation of chapter 22-22.

Source: SL 2003, ch 133, § 1.

23-5A-2. Establishment of State DNA Database and State DNA Databank--Purpose--Compatibility with FBI procedures--Capabilities.

There is hereby established under the administration of the South Dakota State Forensic Laboratory the State DNA Database and State DNA Databank. The South Dakota State Forensic Laboratory shall provide DNA records to the Federal Bureau of Investigation for the searching of DNA records nationwide and storage and maintenance by CODIS. The State DNA Databank shall serve as the repository for DNA samples obtained pursuant to this chapter. The State DNA Database shall be compatible with the procedures specified by the Federal Bureau of Investigation, including use of comparable test procedures, laboratory and computer equipment, supplies, and computer platform and software. The State DNA Database shall have the capability provided by computer software and procedures administered by the South Dakota State Forensic Laboratory to store and maintain DNA records related to:

(1)    Crime scene evidence and forensic casework;

(2)    Convicted offenders and juveniles adjudicated delinquent who are required to provide a DNA sample under this chapter;

(3)    Unidentified persons or body parts;

(4)    Relatives of missing persons; and

(5)    Anonymous DNA profiles used for forensic validation, forensic protocol development, or quality control purposes or establishment of a population statistics database.

Source: SL 2003, ch 133, § 2.

23-5A-3. Duties of State Forensic Laboratory.

The South Dakota State Forensic Laboratory shall:

(1)    Administer the State DNA Identification Record System to support law enforcement agencies and other criminal justice agencies;

(2)    Promulgate rules, pursuant to chapter 1-26, regarding DNA evidence collection, storage, and transfer, and the dissemination of information relating to the DNA evidence;

(3)    Provide for liaison with the FBI and other criminal justice agencies relating to the state's participation in CODIS and the National DNA Identification Index or in any DNA database designated by the South Dakota State Forensic Laboratory.

Source: SL 2003, ch 133, § 3.

23-5A-4. Persons required to provide DNA sample--Retroactivity of requirement.

Any person convicted or adjudicated delinquent for a qualifying offense on or after July 1, 2003, shall provide a DNA sample upon intake or as determined by the supervising agency. However, this requirement does not apply if the person's DNA sample is included in the State DNA Database. A person who has been convicted or adjudicated delinquent for a qualifying offense before July 1, 2003, and who is still incarcerated or under supervision as of July 1, 2003, shall provide a DNA sample as determined by the supervising agency or institution.

Source: SL 2003, ch 133, § 4; SL 2008, ch 114, § 2.

23-5A-5. Persons convicted or adjudicated delinquent for qualifying offense required to provide DNA sample.

Any person who is convicted or adjudicated delinquent for a qualifying offense on or after July 1, 2003, shall provide a DNA sample as follows:

(1)    Any person who is sentenced or receives a delinquency disposition to a period of incarceration shall provide a DNA sample upon intake to a prison, jail, juvenile detention facility, mental health facility, or any other detention facility or institution. If the person is already confined at the time of sentencing or adjudication, the person shall provide a DNA sample immediately after the sentencing or adjudication;

(2)    Any person who is convicted or adjudicated delinquent for a qualifying offense shall provide a DNA sample as a condition for any sentence or adjudication which disposition will not involve a period of incarceration. The agency supervising the person shall determine the time for collection of the DNA sample; and

(3)    Under no circumstances may any person who is convicted or adjudicated delinquent for a qualifying offense be released in any manner after such disposition unless and until that person has provided a DNA sample.

Source: SL 2003, ch 133, § 5.

23-5A-5.1. Registered sex offenders required to provide DNA sample.

Any person who is required to register as a sex offender pursuant to §§ 22-24B-1 to 22-24B-14, inclusive, shall provide a DNA sample as required in this chapter.

Source: SL 2006, ch 123, § 11.

23-5A-5.2. Adult arrested for qualifying offense required to provide DNA sample.

Any person eighteen years of age or older who is arrested for a qualifying offense shall provide a DNA sample upon booking or as determined by the supervising agency. If it is determined that the person's DNA sample is included in the State DNA Database, no additional sample is required.

Source: SL 2008, ch 114, § 1.

23-5A-6. Incarcerated or supervised persons to provide DNA sample--Release contingent upon provision of sample.

Any person who has been convicted or adjudicated delinquent for a qualifying offense before July 1, 2003, and who is still serving a period of incarceration or is still under supervised release on July 1, 2003, shall provide a DNA sample as determined by the custodial institution or supervising agency and may not be released in any manner prior to the expiration of the person's maximum term of incarceration or supervised release unless and until that person has provided a DNA sample.

Source: SL 2003, ch 133, § 6.

23-5A-7. Interjurisdictional provisions to provide DNA sample.

If the state accepts a person from another state under any interstate compact, or under any other reciprocal agreement with any county, state, or federal agency, or any other provision of law, whether or not the person is confined or released, the acceptance is conditional on the person providing a DNA sample if the person was convicted of an offense in any other jurisdiction which would be considered a qualifying offense as defined in § 23-5A-1 if committed in this state, or if the person was convicted of an equivalent offense in any other jurisdiction. The person shall provide the DNA sample in accordance with the rules of the custodial institution or supervising agency.

Source: SL 2003, ch 133, § 7.

23-5A-8. Application of this chapter to persons on probation or parole--Application to persons sentenced to death, life or indeterminate sentences--Other application.

The requirements of this chapter apply regardless of whether a court advises a person that a DNA sample must be provided to the State DNA Databank and Database as a condition of probation or parole. No person who has been sentenced to death or life without the possibility of parole, or to any life or indeterminate term of incarceration is exempt from the requirements of this chapter. Any person subject to this chapter, who has not provided a DNA sample for any reason, including the person's release prior to July 1, 2003, an oversight or error, or because of the person's transfer from another jurisdiction, shall give a DNA sample for inclusion in the State DNA Database after being notified by the South Dakota Division of Criminal Investigation. If a person's DNA sample is not adequate for any reason, the person shall provide another DNA sample for analysis.

Source: SL 2003, ch 133, § 8.

23-5A-9. Agencies or institutions may contract with third parties to collect samples.

The agency or institution having custody or control or the agency providing supervision of persons convicted or adjudicated delinquent for qualifying offenses, as appropriate, may contract with third parties to provide for the collection of the DNA samples described in §§ 23-5A-5, 23-5A-6, and 23-5A-7.

Source: SL 2003, ch 133, § 9.

23-5A-10. Fingerprints to be provided as identification of person.

A fingerprint or fingerprints shall be provided from a person convicted of, or adjudicated delinquent for, a qualifying offense for the purpose of verifying the identity of that person.

Source: SL 2003, ch 133, § 10.

23-5A-11. DNA samples to be forwarded to State Forensic Laboratory.

DNA samples collected pursuant to this chapter shall be forwarded to the South Dakota State Forensic Laboratory in accordance with procedures established by the South Dakota State Forensic Laboratory.

Source: SL 2003, ch 133, § 11.

23-5A-12. Immunity from liability of persons collecting DNA samples.

No person authorized to collect DNA samples may be held civilly or criminally liable for the collection of a DNA sample pursuant to this chapter if such person performs these duties in good faith and in a reasonable manner according to generally accepted medical or other professional practices.

Source: SL 2003, ch 133, § 12.

23-5A-13. Reasonable force allowed in collection of DNA sample--Immunity from liability.

Duly authorized law enforcement and corrections personnel may employ reasonable force in cases if an individual refuses to provide a DNA sample required under this chapter. No such employee may be held civilly or criminally liable for the use of such reasonable force.

Source: SL 2003, ch 133, § 13.

23-5A-14. Refusal to supply sample a felony.

Any person who is subject to the requirements of this chapter, and who, after receiving notification of the requirement to provide a DNA sample, knowingly refuses to provide such DNA sample, is guilty of a Class 5 felony.

Source: SL 2003, ch 133, § 14.

23-5A-15. Mistaken collection or placement of sample does not invalidate sample's use in database.

The detention, arrest, or conviction of a person based upon a database match or database information is not invalidated if it is determined that the sample was obtained or placed in the database by mistake.

Source: SL 2003, ch 133, § 15.

23-5A-16. Promulgation of rules for collection, analysis, storage, etc..

The attorney general's office may promulgate rules pursuant to chapter 1-26, for the collection, submission, identification, analysis, storage, and disposition of the DNA samples and DNA records collected under this chapter. The DNA records shall be securely stored in the State DNA Database consistent with the procedures established by the FBI. These procedures shall also require compliance with national quality assurance standards to ensure that the DNA records satisfy standards for acceptance of such records into the national DNA identification index.

Source: SL 2003, ch 133, § 16.

23-5A-17. Permissible uses of DNA analyses.

The analyses to be performed on each DNA sample collected pursuant to this chapter shall be used only for law enforcement identification purposes, to assist in the recovery or identification of human remains or missing persons, or subject to the conditions of subdivision 23-5A-25(4). Analyses of DNA samples obtained pursuant to this chapter are not authorized for identification of any medical or genetic disorder.

Source: SL 2003, ch 133, § 17; SL 2010, ch 124, § 1.

23-5A-18. Uses of DNA samples remaining after analyses.

All or part of the remainder of the DNA sample stored in the State DNA Databank may be used only for forensic validation studies and forensic protocol development purposes and to create a statistical database provided that no personally identifying information is included or for retesting to validate or update the original analysis or for quality control purposes.

Source: SL 2003, ch 133, § 18.

23-5A-19. Use of analyses performed on persons adjudicated delinquent--Includes adult prosecution.

The results of any analyses conducted pursuant to this chapter from a person adjudicated delinquent may be used for any law enforcement identification purpose, including adult prosecutions.

Source: SL 2003, ch 133, § 19.

23-5A-20. Revocation of license of public DNA laboratory.

The South Dakota State Forensic Laboratory may revoke the right of any public forensic DNA laboratory within the state to access and contribute DNA records to the State DNA Database if the required disclosure and quality assurance standards required by this chapter are not met.

Source: SL 2003, ch 133, § 20.

23-5A-21. Third party contractors--Subject to restrictions and requirements of this chapter.

The South Dakota State Forensic Laboratory may contract with third parties for the purposes of implementing this chapter. Any other party contracting to carry out the functions of this chapter is subject to the same restrictions and requirements of this chapter, insofar as applicable, as the South Dakota State Forensic Laboratory, as well as any additional restrictions imposed by the South Dakota State Laboratory.

Source: SL 2003, ch 133, § 21.

23-5A-22. Confidentiality of records--Disclosure prohibited.

Any DNA record or DNA sample submitted to the South Dakota State Forensic Laboratory pursuant to this chapter is confidential and may not be disclosed to or shared with any person or agency unless disclosure is authorized by this chapter.

Source: SL 2003, ch 133, § 22.

23-5A-23. Records not public.

Any DNA record or DNA sample submitted to the South Dakota State Forensic Laboratory pursuant to this chapter is confidential and is not a public record under chapter 1-27.

Source: SL 2003, ch 133, § 23.

23-5A-24. Discovery rules govern access to DNA records.

In the case of a criminal proceeding, requests to access a person's DNA record shall be in accordance with the rules for criminal discovery under Title 23A.

Source: SL 2003, ch 133, § 24.

23-5A-25. Release of record or sample for certain authorized purposes.

Any DNA record or DNA sample submitted to the South Dakota State Forensic Laboratory may only be released for the following authorized purposes:

(1)    For law enforcement identification purposes, including the identification of human remains, to federal, state, or local criminal justice agencies;

(2)    For criminal defense and appeal purposes, to a defendant, who shall have access to samples and analyses performed in connection with the case in which such defendant is charged or was convicted;

(3)    If personally identifiable information is removed, for forensic validation studies, forensic protocol development or quality control purposes and for establishment or maintenance of a population statistics database, to federal, state, or local forensic laboratories or law enforcement agencies; and

(4)    If ordered by the court for determination of parentage and if there is no other available DNA sample and all other reasonable opportunities to locate a known sample have been exhausted.

Source: SL 2003, ch 133, § 25; SL 2010, ch 124, § 2.

23-5A-26. Disclosure to unauthorized person or agency a felony--Unauthorized use or tampering a felony.

Any person who knowingly or intentionally discloses any DNA record or the results of a forensic DNA analysis, to a person or agency other that one authorized to have access to such records under this chapter; or knowingly or intentionally uses or receives DNA records, or the results of a forensic DNA analysis, for purposes other than those authorized under this chapter; or knowingly or intentionally tampers or attempts to tamper with any DNA sample or the collection container without lawful authority, is guilty of a Class 5 felony.

Source: SL 2003, ch 133, § 26.

23-5A-27. Confidentiality of software and databases used by state laboratory.

The computer software and database structures used by the South Dakota State Forensic Laboratory to implement this chapter are confidential.

Source: SL 2003, ch 133, § 27.

23-5A-28. Request for expungement--Grounds.

Any person whose DNA record or DNA profile has been included in the State DNA Database in accordance with this chapter may request expungement on the grounds that the arrest that led to the inclusion of the person's DNA record or DNA profile has not resulted in a felony charge within one year; has been resolved by a dismissal, acquittal, or misdemeanor conviction; or has not resulted in a felony conviction; or the conviction or delinquency adjudication on which the authority for including that person's DNA record or DNA profile was based has been reversed and the case dismissed.

Source: SL 2003, ch 133, § 28; SL 2008, ch 114, § 3.

23-5A-29. Expungement of record--Receipt of court order--Exception.

Upon receipt of written request for expungement; certified copy of the final court order reversing and dismissing the conviction or delinquency adjudication; and any other information necessary to ascertain the validity of the request, the South Dakota State Forensic Laboratory shall expunge all DNA records and identifiable information in the database pertaining to the person and destroy the DNA sample from the person, unless the South Dakota State Forensic Laboratory determines that the person has otherwise become obligated to submit a DNA sample.

Source: SL 2003, ch 133, § 29.

23-5A-30. Expungement not required if certain other evidence would be destroyed.

The South Dakota State Forensic Laboratory is not required to destroy an item of physical evidence obtained from a sample if evidence relating to another person would thereby be destroyed.

Source: SL 2003, ch 133, § 30.

23-5A-31. Failure to expunge not grounds for invalidation.

Any identification, warrant, probable cause to arrest, or arrest based upon a database match is not invalidated due to a failure to expunge or a delay in expunging records.

Source: SL 2003, ch 133, § 31.

23-5A-32. Liberal construction of chapter--Other laws.

The provisions of this chapter shall be liberally construed and shall be held to in addition to, and not in substitution for or a limitation of, the provisions of any other law.

Source: SL 2003, ch 133, § 32.