§ 15A-268. Preservation of biological evidence. - North Carolina Statutes

§ 15A‑268.  Preservationof biological evidence.

(a)        As used in thissection, the term "biological evidence" includes the contents of asexual assault examination kit or any item that contains blood, semen, hair,saliva, skin tissue, fingerprints, or other identifiable human biologicalmaterial that may reasonably be used to incriminate or exculpate any person inthe criminal investigation, whether that material is catalogued separately on aslide or swab, in a test tube, or some other similar method, or is present onclothing, ligatures, bedding, other household materials, drinking cups,cigarettes, or any other item of evidence.

(a1)      Notwithstanding anyother provision of law and subject to subsection (b) of this section, acustodial agency shall preserve any physical evidence that is reasonably likelyto contain any biological evidence collected in the course of a criminalinvestigation or prosecution. Evidence shall be preserved in a mannerreasonably calculated to prevent contamination or degradation of any biologicalevidence that might be present, subject to a continuous chain of custody, andsecurely retained with sufficient official documentation to locate theevidence.

(a2)      The SBI shallpromulgate and publish minimum guidelines that meet the requirements forretention and preservation of biological evidence under subsection (a1) of thissection. Guidelines shall be published no later than January 1, 2010, and shallbe reviewed and updated biennially thereafter. Law enforcement agencies and theConference of Clerks of Superior Court shall ensure the guidelines aredistributed to all employees with responsibility for maintaining custody ofevidence.

(a3)      When physicalevidence is offered or admitted into evidence in a criminal proceeding of theGeneral Court of Justice, the presiding judge shall inquire of the State anddefendant as to the identity of the collecting agency of the evidence andwhether the evidence in question is reasonably likely to contain biologicalevidence and if that biological evidence is relevant to establishing theidentity of the perpetrator in the case. If either party asserts that theevidence in question may have biological evidentiary value, and the court sofinds, the court shall instruct that the evidence be so designated in thecourt's records and that the evidence be preserved pursuant to the requirementsof this section.

(a4)      If evidence has beendesignated by the court as biological evidence pursuant to subsection (a3) ofthis section, the clerk of superior court that takes custody of evidencepursuant to the rules of practice and procedure for the superior and districtcourts as adopted by the Supreme Court pursuant to G.S. 7A‑34 shallpreserve such evidence consistent with subsection (a1) of this section. Uponconclusion of the clerk's role as custodian, as provided in the applicablerules of practice, the clerk shall return such evidence to the collectingagency, as determined in subsection (a3) of this section, in a manner thatensures the chain of custody is maintained and documented.

(a5)      The duty to preservemay not be waived knowingly and voluntarily by a defendant, without a courtproceeding.

(a6)      The evidencedescribed by subsection (a1) of this section shall be preserved for thefollowing period:

(1)        For convictionresulting in a sentence of death, until execution.

(2)        For convictionresulting in a sentence of life without parole, until the death of theconvicted person.

(3)        For conviction ofany homicide, sex offense, assault, kidnapping, burglary, robbery, arson orburning, for which a Class B1‑E felony punishment is imposed, theevidence shall be preserved during the period of incarceration and mandatorysupervised release, including sex offender registration pursuant to Article 27Aof Chapter 14 of the General Statutes, except in cases where the personconvicted entered and was convicted on a plea of guilty, in which case theevidence shall be preserved for the earlier of three years from the date ofconviction or until released.

(4)        Biological evidencecollected as part of a criminal investigation of any homicide or rape, in whichno charges are filed, shall be preserved for the period of time that the crimeremains unsolved.

(5)        A custodial agencyin custody of biological evidence unrelated to a criminal investigation orprosecution referenced by subdivision (1), (2), (3), or (4) of this subsectionmay dispose of the evidence in accordance with the rules of the agency.

(a7)      Upon written requestby the defendant, the custodial agency shall prepare an inventory of biologicalevidence relevant to the defendant's case that has been preserved pursuant tothis section.

(b)        The custodialagency required to preserve evidence pursuant to subsection (a1) of thissection may dispose of the evidence prior to the expiration of the period oftime described in subsection (a6) of this section if all of the followingconditions are met:

(1)        The custodial agencysent notice of its intent to dispose of the evidence to the district attorneyin the county in which the conviction was obtained.

(2)        The districtattorney gave to each of the following persons written notification of theintent of the custodial agency to dispose of the evidence: any defendantconvicted of a felony who is currently incarcerated in connection with thecase, the defendant's counsel of record for that case, and the Office ofIndigent Defense Services. The notice shall be consistent with the provisionsof this section, and the district attorney shall send a copy of the notice tothe custodial agency. Delivery of written notification from the districtattorney to the defendant was effectuated by the district attorney transmittingthe written notification to the superintendent of the correctional facilitywhere the defendant was assigned at the time and the superintendent's personaldelivery of the written notification to the defendant. Certification ofdelivery by the superintendent to the defendant in accordance with thissubdivision was in accordance with subsection (c) of this section.

(3)        The writtennotification from the district attorney specified the following:

a.         That the custodialagency would destroy the evidence collected in connection with the case unlessthe custodial agency received a written request that the evidence not bedestroyed.

b.         The address of thecustodial agency where the written request was to be sent.

c.         That the writtenrequest from the defendant, or his or her representative, must be received bythe custodial agency within 90 days of the date of receipt by the defendant ofthe district attorney's written notification.

d.         That the writtenrequest must ask that the evidence not be destroyed or disposed of for one ofthe following reasons:

1.         The case iscurrently on appeal.

2.         The case iscurrently in postconviction proceedings.

3.         The defendant willfile a motion for DNA testing pursuant to G.S. 15A‑269 within 180 days ofthe postmark of the defendant's response to the district attorney's writtennotification of the custodial agency's intent to dispose of the evidence,unless a request for extension is requested by the defendant and agreed to bythe custodial agency.

(4)        The custodial agencydid not receive a written request in compliance with the conditions set forthin sub‑subdivision (3)d. of this subsection within 90 days of the date ofreceipt by the defendant of the district attorney's written notification.

(c)        Upon receiving awritten notification from a district attorney in accordance with subdivision(b)(3) of this section, the superintendent shall personally deliver the writtennotification to the defendant. Upon effectuating personal delivery on thedefendant, the superintendent shall sign a sworn written certification that thewritten notification had been delivered to the defendant in compliance withthis subsection indicating the date the delivery was made. The superintendent'scertification shall be sent by the superintendent to the custodial agency thatintends to dispose of the sample of evidence. The custodial agency may rely onthe superintendent's certification as evidence of the date of receipt by thedefendant of the district attorney's written notification.

(d)        After a hearingheld in response to a defendant's written request that the evidence not bedestroyed in response to notice pursuant to subsection (b) of this section, thecourt may enter an order authorizing the custodial agency to dispose of theevidence if the court determines by the preponderance of the evidence that theevidence:

(1)        Has no significantvalue for biological analysis and should be returned to its rightful owner,destroyed, used for training purposes, or otherwise disposed of as provided bylaw; or

(2)        Repealed by SessionLaws 2009‑203, s. 4, effective December 1, 2009.

(3)        May have value forbiological analysis but is of a size, bulk, or physical character as to renderretention impracticable or should be returned to its rightful owner.

(e)        The court orderallowing the disposition of the evidence pursuant to subdivision (d)(3) of thissection shall require the custodial agency to return such evidence to thecollecting agency. The collecting agency shall take reasonable measures toremove or preserve portions of evidence likely to contain biological evidencerelated to the offense through cuttings, swabs, or other means consistent withSBI minimum guidelines in a quantity sufficient to permit DNA testing beforereturning or disposing of the evidence. The court may provide the defendant anopportunity to take reasonable measures to preserve the evidence.

(f)         An order regardingthe disposition of evidence pursuant to this section shall be a final andappealable order. The defendant shall have 30 days from the entry of the orderto file notice of appeal. The custodial agency shall not dispose of theevidence while the appeal is pending.

(g)        If an entity is askedto produce evidence that is required to be preserved under the provisions ofthis section and cannot produce the evidence, the chief evidence custodian ofthe custodial agency shall provide an affidavit in which he or she describes,under penalty of perjury, the efforts taken to locate the evidence and affirmsthat the evidence could not be located. If the evidence that is required to bepreserved pursuant to this section has been destroyed, the court may conduct ahearing to determine whether obstruction of justice and contempt proceedingsare in order. If the court finds the destruction violated the defendant's dueprocess rights, the court shall order an appropriate remedy, which may includedismissal of charges.

(h)        All recordsdocumenting the possession, control, storage, and destruction of evidencerelated to a criminal investigation or prosecution of an offense referenced insubdivision (1), (2), (3), or (4) of subsection (a6) of this section shall beretained.

(i)         Whoever knowinglyand intentionally destroys, alters, conceals, or tampers with evidence that isrequired to be preserved under this section, with the intent to impair theintegrity of that evidence, prevent that evidence from being subjected to DNAtesting, or prevent production or use of that evidence in an officialproceeding, shall be punished as follows:

(1)        If the evidence isfor a noncapital crime, then a violation of this subsection is a Class Ifelony.

(2)        If the evidence isfor a crime of first degree murder, then a violation of this subsection is aClass H felony.  (2001‑282,s. 4.; 2007‑539, s. 2; 2009‑203, s. 4; 2009‑570, s. 30(a),(b).)