Time and procedure for withdrawal of blood samples

(a) Each sample required pursuant to Code Section 35-3-160 from persons who are to be incarcerated shall be withdrawn within the first 30 days of incarceration at the receiving unit of the detention facility or at such other place as is designated by the department. Each sample required pursuant to Code Section 35-3-160 from persons who are to be released from a detention facility shall be withdrawn within the 12 months preceding such person’s release at a place designated by the department. The required samples from persons who are not sentenced to a term of confinement shall be withdrawn as a condition of probation. The division shall publish in its quality manuals the procedures for the 161 35-3-162 collection and transfer of samples to such division pursuant to Code Section 35-3-154. Personnel at a detention facility shall implement the provisions of this Code section as part of the regular processing of offenders. (b) Samples collected by oral swab or by a noninvasive procedure may be collected by any individual who has been trained in the procedure. Only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, graduate laboratory technician, or phlebotomist shall withdraw any sample of blood to be submitted for analysis. No civil liability shall attach to any person authorized to take a sample as provided in this article as a result of the act of taking a sample from any person submitting thereto, provided the sample was taken according to recognized medically accepted procedures. However, no person shall be relieved from liability for negligence in the withdrawing of any blood sample. (c) Chemically clean sterile disposable needles shall be used for the withdrawal of all samples of blood. The containers for blood samples, oral swabs, and the samples obtained by noninvasive procedures shall be sealed and labeled with the subject’s name, social security number, date of birth, race, and gender plus the name of the person collecting the sample and the date and place of collection. The containers shall be secured to prevent tampering with the contents. The steps set forth in this subsection relating to the taking, handling, identification, and disposition of samples are procedural and not substantive. Substantial compliance therewith shall be deemed to be sufficient. The samples shall be transported to the division not more than 15 days following withdrawal and shall be analyzed and stored in the DNA data bank in accordance with Code Sections 35-3-162 and 35-3-163. History. — Code 1981, § 35-3-161, enacted by Ga. L. 2011, p. 264, § 3-1/SB 80. 35-3-162. Procedure for analysis and storage of blood sample; use of remainder of sample not subjected to analysis; confidentiality of results. Whether or not the results of an analysis are to be included in the data bank, the bureau shall conduct the DNA analysis in accordance with procedures adopted by the bureau to determine identification characteristics specific to the individual whose sample is being analyzed. The director or his or her designated representative shall complete and maintain on file a form indicating the name of the person whose sample is to be analyzed, the date and by whom the sample was received and examined, and a statement that the seal on the container containing the sample had not been broken or otherwise tampered with. The remainder of a sample submitted for analysis and inclusion in 162 35-3-163 the data bank pursuant to Code Section 35-3-160 may be divided, if possible, labeled as provided for the original sample, and securely stored by the bureau in accordance with specific procedures of the bureau to ensure the integrity and confidentiality of the samples. All or part of the remainder of that sample may be used only to create a statistical data base provided no identifying information on the individual whose sample is being analyzed is included or for retesting by the bureau to validate or update the original analysis. A report of the results of a DNA analysis conducted by the bureau as authorized, including the identifying information, shall be made and maintained at the bureau. Except as specifically provided in this Code section and Code Section 35-3-163, the results of the analysis shall be securely stored and shall remain confidential. History. — Code 1981, § 35-3-162, enacted by Ga. L. 2011, p. 264, § 3-1/SB 80. 35-3-163. Dissemination of information in data bank to law enforcement officials; comparison of profile; request for search; separate statistical data base authorized; fee for search and comparative analysis. (a) It shall be the duty of the bureau to receive samples and to analyze, classify, and file the results of DNA identification characteristics of samples submitted pursuant to Code Section 35-3-160 and to make such information available as provided in this Code section. The results of an analysis and comparison of the identification of the characteristics from two or more biological samples shall be made available directly to federal, state, and local law enforcement officers upon a request made in furtherance of an official investigation of any criminal offense. A request may be made by personal contact, mail, or electronic means. The name of the requestor and the purpose for which the information is requested shall be maintained on file with the bureau. (b) Upon request from a prosecuting attorney or law enforcement agency, the bureau may compare a DNA profile from an analysis of a sample from a suspect in a criminal investigation when the sample was obtained through a search warrant, consent of the suspect, court order, or other lawful means to DNA profiles lawfully collected and maintained by the bureau. The bureau shall not add a DNA profile of any such suspect to any DNA data bank except as provided in this article. (c)(1) Upon his or her request, a copy of the request for search shall be furnished to any individual identified and charged with an offense as the result of a search of information in the data bank. Only when a sample or DNA profile supplied by the requestor satisfactorily matches the requestor’s profile in the data bank shall the existence of 163 35-3-163 data in the data bank be confirmed or identifying information from the data bank be disseminated. (2) The name of the individual whose profile is contained in the data bank may be related to any other data bases which are constructed for law enforcement purposes and may be disseminated only for law enforcement purposes. (3) Upon a showing by the accused in a criminal proceeding that access to the DNA data bank is material to the investigation, preparation, or presentation of a defense at trial or in a posttrial proceeding, a superior court having proper jurisdiction over such criminal proceeding shall direct the bureau to compare the DNA profile which has been generated by the accused through an independent test against the data bank, provided that such DNA profile has been generated in accordance with standards for forensic DNA analysis adopted pursuant to 42 U.S.C. Section 14131. (d) The bureau shall develop procedures governing the methods of obtaining information from the data bank in accordance with this Code section and procedures for verification of the identity and authority of the requestor. The bureau shall specify the positions in that agency which require regular access to the data bank and samples submitted as a necessary function of the job. (e) The bureau may create a separate statistical data base composed of DNA profiles of samples of persons whose identity is unknown. Nothing in this Code section or Code Section 35-3-164 shall prohibit the bureau from sharing or otherwise disseminating the information in the statistical data base with law enforcement or criminal justice agencies within or outside the state. (f ) The bureau may charge a reasonable fee to search and provide a comparative analysis of DNA profiles in the data bank to any authorized law enforcement agency outside of this state. History. — Code 1981, § 35-3-163, enacted by Ga. L. 2011, p. 264, § 3-1/SB 80; Ga. L. 2013, p. 141, § 35/HB 79; Ga. L. 2019, p. 299, § 2/HB 470. The 2019 amendment, effective April 28, 2019, in subsection (b), in the first sentence, substituted ‘‘prosecuting attorney’’ for ‘‘prosecutor’’ near the beginning and substituted ‘‘when’’ for ‘‘where’’ in the middle, and deleted ‘‘upon conviction’’ following ‘‘except’’ near the end of the second sentence; substituted ‘‘individual’’ for ‘‘person’’ in the middle of the first sentence in paragraph (c)(1); substituted ‘‘individual’’ for ‘‘convicted felon’’ near the begin- ning of paragraph (c)(2); and, in the middle of paragraph (c)(3), substituted ‘‘posttrial’’ for ‘‘postconviction’’ and substituted ‘‘the DNA profile’’ for ‘‘a DNA profile’’.