Utah Code 53-10-403.7. Investigative genetic genealogy service — Genetic genealogy database utilization — Third-party specimens — Requirements
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(1) As used in this section:
Terms Used In Utah Code 53-10-403.7
- Arrest: Taking physical custody of a person by lawful authority.
- Bureau: means the Bureau of Criminal Identification within the department, created in Section 53-10-201. See Utah Code 53-10-102
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Forensic: means dealing with the application of scientific knowledge relating to criminal evidence. See Utah Code 53-10-102
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Law enforcement agency: means an entity or division of:(1)(e)(i)(1)(e)(i)(A) the federal government, a state, or a political subdivision of a state;(1)(e)(i)(B) a state institution of higher education; or(1)(e)(i)(C) a private institution of higher education, if the entity or division is certified by the commissioner under Title 53, Chapter 19, Certification of Private Law Enforcement Agency; and(1)(e)(ii) that exists primarily to prevent and detect crime and enforce criminal laws, statutes, and ordinances. See Utah Code 53-1-102
- Process: means a writ or summons issued in the course of a judicial proceeding. See Utah Code 68-3-12.5
- State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
(1)(a) “Genetic genealogy company” means a company that provides a genetic genealogy database utilization or an investigative genetic genealogy service.(1)(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.(1)(c) “Genetic information” means data acquired from an analysis of a DNA specimen.(1)(d) “Investigative genetic genealogy service” means the processing of an individual’s DNA specimen or genetic data file to be used for a genetic genealogy database utilization.(1)(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.(1)(f) “Qualifying case” means an investigation of:(1)(f)(i) a violent felony; or(1)(f)(ii) the identity of a missing or unknown individual.(1)(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:
(2)(a)
(2)(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:
(2)(a)(i)(A) the perpetrator of a crime;
(2)(a)(i)(B) the remains of an unidentified individual; or
(2)(a)(i)(C) a missing or unknown individual;
(2)(a)(ii) the case for which the law enforcement agency requires the information is a qualifying case;
(2)(a)(iii) a routine search of CODIS-eligible profiles, if any, developed in the case revealed no DNA matches to the DNA profile;
(2)(a)(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
(2)(a)(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
(2)(b) ordered by a court in accordance with a postconviction relief proceeding under Section 78B-9-301.
(3)
(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:
(3)(a)(i) consult with the prosecuting agency; and
(3)(a)(ii)
(3)(a)(ii)(A) obtain informed, voluntary consent from the individual providing the third-party DNA specimen; or
(3)(a)(ii)(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.
(3)(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.
(3)(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:
(4)(a) identify a possible suspect;
(4)(b) exonerate a possible suspect; or
(4)(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:
(5)(a) disclose to the genetic genealogy company that the request is from a law enforcement agency;
(5)(b) only make a request to a genetic genealogy company that:
(5)(b)(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;
(5)(b)(ii) allows a user to:
(5)(b)(ii)(A) opt in or out of having the user’s data be accessible in an investigation requested by law enforcement; and
(5)(b)(ii)(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
(5)(b)(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;
(5)(c) confirm that the request is permitted under the terms of service for the genetic genealogy company; and
(5)(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)
(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.
(6)(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:
(6)(b)(i) if applicable, verify with confirmatory genetic testing that the DNA obtained from the crime scene could have originated from the individual;
(6)(b)(ii) if applicable, make a prompt, formal request to the genetic genealogy company to:
(6)(b)(ii)(A) provide the DNA information and any associated account information related to the charged crime directly to the law enforcement agency; and
(6)(b)(ii)(B) remove the DNA information and any associated account information held by the genetic genealogy company;
(6)(b)(iii) if applicable, document the request described in Subsection (6)(b)(ii); and
(6)(b)(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:
(7)(a) may not request an investigative genetic genealogy service or a genetic genealogy database utilization except as provided in this section;
(7)(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
(7)(c) shall ensure that a DNA specimen and associated genetic information is:
(7)(c)(i) retained in conformance with applicable laws; and
(7)(c)(ii) destroyed once permitted under applicable laws.
(8)
(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.
(8)(b)
(8)(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.
(8)(b)(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.