Vermont Statutes Title 20 Sec. 1935
Terms Used In Vermont Statutes Title 20 Sec. 1935
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Commissioner: means the Commissioner of Public Safety. See
- Conviction: A judgement of guilt against a criminal defendant.
- Department: means the Department of Public Safety. See
- DNA: means deoxyribonucleic acid. See
- DNA record: means DNA sample identification information stored in the State DNA database or CODIS. See
- DNA sample: means a forensic unknown tissue sample or a tissue sample provided by any person convicted of a designated crime. See
- Employee: means a person employed by the Department. See
- 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.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Person: shall include any natural person, corporation, municipality, the State of Vermont or any department, agency, or subdivision of the State, and any partnership, unincorporated association, or other legal entity. See
- State: when applied to the different parts of the United States may apply to the District of Columbia and any territory and the Commonwealth of Puerto Rico. See
- Venue: The geographical location in which a case is tried.
§ 1935. Procedure if person refuses to give sample
(a) If a person who is required to provide a DNA sample under this subchapter refuses to provide the sample, the Commissioner of the Department of Corrections or of Public Safety shall file a motion in the Superior Court for an order requiring the person to provide the sample.
(b) The person who refuses to provide a DNA sample shall be served with a copy of the motion and shall be entitled to a hearing by the court, limited in scope solely to the issues described in subsection (c) of this section.
(c) If the court finds that the person who refused to provide a DNA sample is a person required by section 1933 of this subchapter to provide a DNA sample, the court shall issue a written order requiring the person to provide the DNA sample in accordance with the provisions of this subchapter. The court’s order shall also specify the manner by which the DNA sample shall be obtained and may authorize law enforcement and correctional personnel to employ reasonable force to obtain the DNA sample. No such employee or health care professional shall be criminally or civilly liable for the use of reasonable force.
(d) If the court finds that the person who refused to provide a DNA sample is not a person required by section 1933 of this subchapter to provide a DNA sample, the court shall issue a written order relieving the person of the obligation to provide a DNA sample.
(e) If the Supreme Court reverses a determination that a DNA sample shall be provided, the Department shall destroy the DNA sample and expunge the DNA record as provided in section 1940 of this subchapter.
(f) Venue for proceedings under this section shall be in the territorial unit of the Superior Court where the conviction occurred. Hearings under this section shall be conducted by the Superior Court without a jury and shall be subject to the Vermont Rules of Civil Procedure as consistent with this section. The State has the burden of proof by a preponderance of the evidence. Affidavits of witnesses shall be admissible evidence that may be rebutted by witnesses called by either party. The affidavits shall be delivered to the other party at least five days prior to the hearing.
(g) A decision of the Superior Court under this section may be appealed as a matter of right to the Supreme Court. The court’s order shall not be stayed pending appeal unless the respondent is reasonably likely to prevail on appeal. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2009, No. 154 (Adj. Sess.), § 158.)