UPDATED AS OF 20240506: See HB19_ODNAExpungementNotice 20240506 produced the Utah Forensic Services division of the Department of Public Safety. See HERE:
Utah criminal law requires people are who arrested for certain crimes to produce a DNA sample for use in a database maintain by the Utah Bureau of Forensic Services. The Bureau reports ultimate the Department of Public Safety.
Here is a brief, non-exhaustive list of criminal offense where your DNA will be taken:
(a) any felony or class A misdemeanor under the Utah Code;
(b) any offense under Subsection (2)(a):
(i) for which the court enters a judgment for conviction to a lower degree of offense under Section 76-3-402; or
(ii) regarding which the court allows the defendant to enter a plea in abeyance as defined in Section 77-2a-1; or
(c)
(i) any violent felony as defined in Section 53-10-403.5;
(ii) sale or use of body parts, Section 26-28-116;
(iii) failure to stop at an accident that resulted in death, Section 41-6a-401.5;
(iv) driving with any amount of a controlled substance in a person’s body and causing serious bodily injury or death, Subsection 58-37-8(2)(g);
(v) a felony violation of enticing a minor over the Internet, Section 76-4-401;
(vi) a felony violation of propelling a substance or object at a correctional officer, a peace officer, or an employee or a volunteer, including health care providers, Section 76-5-102.6;
(vii) aggravated human trafficking and aggravated human smuggling, Section 76-5-310;
(viii) a felony violation of unlawful sexual activity with a minor, Section 76-5-401;
(ix) a felony violation of sexual abuse of a minor, Section 76-5-401.1;
(x) unlawful sexual contact with a 16 or 17-year old, Section 76-5-401.2;
(xi) sale of a child, Section 76-7-203;
(xii) aggravated escape, Subsection 76-8-309(2);
(xiii) a felony violation of assault on an elected official, Section 76-8-315;
(xiv) influencing, impeding, or retaliating against a judge or member of the Board of Pardons and Parole, Section 76-8-316;
(xv) advocating criminal syndicalism or sabotage, Section 76-8-902;
(xvi) assembly for advocating criminal syndicalism or sabotage, Section 76-8-903;
(xvii) a felony violation of sexual battery, Section 76-9-702.1;
(xviii) a felony violation of lewdness involving a child, Section 76-9-702.5;
(xix) a felony violation of abuse or desecration of a dead human body, Section 76-9-704;
(xx) manufacture, possession, sale, or use of a weapon of mass destruction, Section 76-10-402;
(xxi) manufacture, possession, sale, or use of a hoax weapon of mass destruction, Section 76-10-403;
(xxii) possession of a concealed firearm in the commission of a violent felony, Subsection 76-10-504(4);
(xxiii) assault with the intent to commit bus hijacking with a dangerous weapon, Subsection 76-10-1504(3);
(xxiv) commercial obstruction, Subsection 76-10-2402(2);
(xxv) a felony violation of failure to register as a sex or kidnap offender, Section 77-41-107;
(xxvi) repeat violation of a protective order, Subsection 77-36-1.1(4); or
(xxvii) violation of condition for release after arrest under Section 78B-7-802.
You can file a motion with the appropriate Utah court for an order to destroy your DNA IF:
(1). A final judgment reverses the conviction, judgment, or order that created an obligation to provide a DNA specimen; or
(2). All charges arising from the same criminal episode for which the DNA specimen
was obtained under Subsection 53-10-404.5(1)(a) have been resolved by a final judgment of dismissal with prejudice or acquittal.
Time will tell how Utah criminal courts will treat motions to destroy DNA collected evidence on classic pleas in abeyance, or declinations to prosecutor. This is new law.
53-10-404.5. Obtaining DNA specimen at time of booking — Payment of fee upon
30 conviction.
31 (1) (a) When a sheriff books a person for any offense under Subsections
32 53-10-403(1)(c) and (d), the sheriff shall:
33 (i) except as provided in Subsection (1)(b), obtain a DNA specimen from the person
34 upon booking of the person at the county jail[, except under Subsection (1)(b).]; and
35 (ii) provide the person, in a manner the bureau specifies, notice of the process
36 described in Subsection 53-10-406(6)(b) to request destruction of the DNA specimen and
37 removal of the person’s DNA record from the database described in Subsection
38 53-10-406(1)(d).
39 (b) If at the time of booking the sheriff is able to obtain information from the bureau
40 stating that the bureau has [on file a DNA specimen for the person] received a DNA specimen
41 for the person and the sample analysis is either in process or complete, the sheriff is not
42 required to obtain an additional DNA specimen.
43 (c) If at the time of booking the sheriff is able to obtain information from the bureau
44 stating that the bureau has received a DNA specimen for the person and the sample analysis is
45 pending, the sheriff may obtain an additional DNA specimen.
46 (2) The person booked under Subsection (1) shall pay a fee of $150 for the cost of
47 obtaining the DNA specimen if:
48 (a) the charge upon which the booking is based is resolved by a conviction or the
49 person is convicted of any charge arising out of the same criminal episode regarding which the
50 DNA specimen was obtained; and
51 (b) the person’s DNA sample is not on file under Subsection (1)(b).
52 (3) (a) All fees collected under Subsection (2) shall be deposited [in] into the DNA
53 Specimen Restricted Account created in Section 53-10-407, except that the agency collecting
54 the fee may retain not more than $25 per individual specimen for the costs of obtaining the
55 DNA specimen.
56 (b) The agency collecting the $150 fee may not retain from each separate fee more than
57 $25, and no amount of the $150 fee may be credited to any other fee or agency obligation.
58 (4) Any DNA specimen obtained under this section shall be held and may not be
59 processed until:
60 (a) the court has bound the person over for trial following a preliminary hearing for any
61 charge arising out of the same criminal episode regarding which the person was booked;
62 (b) the person has waived the preliminary hearing for any charge arising out of the
63 same criminal episode regarding which the person was booked; [or]
64 (c) a grand jury has returned an indictment for any charge arising out of the same
65 criminal episode regarding which the person was booked[.]; or
66 (d) sixty days after the issuance of an arrest warrant for failure to appear, provided the
67 warrant is still outstanding or has not been recalled.
68 Section 2. Section 53-10-406 is amended to read:
69 53-10-406. DNA specimen analysis — Bureau responsibilities.
70 (1) The bureau shall:
71 (a) administer and oversee the DNA specimen collection process;
72 [(b) store all DNA specimens received and other physical evidence obtained from
73 analysis of those specimens;]
74 (b) store each DNA specimen and associated records received;
75 (c) analyze each specimen, or contract with a qualified public or private laboratory to
76 analyze the [specimens] specimen, to establish the genetic profile of the donor or to otherwise
77 determine the identity of [persons or contract with other qualified public or private laboratories
78 to conduct the analysis] the person;
79 (d) maintain a criminal identification [data base] database containing information
80 derived from DNA analysis;
81 [(e) utilize the specimens to create statistical population frequency data bases, provided
82 that genetic profiles or other information in a population frequency data base may not be
83 identified with specific individuals;]
84 [(f)] (e) ensure that the DNA identification system does not provide information
85 allowing prediction of genetic disease or predisposition to illness;
86 [(g)] (f) ensure that only DNA markers routinely used or accepted in the field of
87 forensic science are used to establish the gender and unique individual identification of the
88 donor;
89 [(h)] (g) utilize only those DNA analysis procedures that are consistent with, and do
90 not exceed, procedures established and used by the Federal Bureau of Investigation for the
91 forensic analysis of DNA;
92 [(i)] (h) destroy a DNA specimen obtained under this part if criminal charges have not
93 been filed within 90 days after booking for an alleged offense under Subsection
94 53-10-403(2)(c); and
95 [(j)] (i) make rules in accordance with Title 63G, Chapter 3, Utah Administrative
96 Rulemaking Act, establishing procedures for obtaining, transmitting, and analyzing DNA
97 specimens and for storing and destroying DNA specimens and [other physical evidence]
98 associated records, and criminal identification information obtained from the analysis.
99 (2) Procedures for DNA analysis may include all techniques which the [Department of
100 Public Safety] department determines are accurate and reliable in establishing identity[,
101 including but not limited to, analysis of DNA, antigen antibodies, polymorphic enzymes, or
102 polymorphic proteins].
103 (3) (a) In accordance with Section 63G-2-305, [all DNA specimens received shall be]
104 each DNA specimen and associated record is classified as protected.
105 (b) The [Department of Public Safety] department may not transfer or disclose any
106 DNA specimen, [physical evidence] associated record, or criminal identification information
107 obtained, stored, or maintained under this section, except under [its] the provisions of this
108 section.
109 (4) Notwithstanding Subsection 63G-2-202(1), the department may deny inspection if
110 [it] the department determines that there is a reasonable likelihood that the inspection would
111 prejudice a pending criminal investigation.
112 (5) The department shall adopt procedures governing the inspection of records, DNA
113 specimens, and challenges to the accuracy of records. The procedures shall accommodate the
114 need to preserve the materials from contamination and destruction.
115 (6) A person whose DNA specimen [has been] is obtained under this part may,
116 personally or through a legal representative, submit:
117 (a) to the court a motion for a court order requiring the destruction of the person’s DNA
118 specimen, associated record, and any criminal identification record created in connection with
119 that specimen, and removal of the person’s DNA record from the database described in
120 Subsection (1)(d) if:
121 [(a)] (i) a final judgment reverses the conviction, judgment, or order that created an
122 obligation to provide a DNA specimen; or
123 (ii) all charges arising from the same criminal episode for which the DNA specimen
124 was obtained under Subsection 53-10-404.5(1)(a) have been resolved by a final judgment of
125 dismissal with prejudice or acquittal; or
126 (b) to the department a request for the destruction of the person’s DNA specimen, and
127 associated record, and removal of the person’s DNA record from the database described in
128 Subsection (1)(d) if:
129 (i) no charge arising from the same criminal episode for which the DNA specimen was
130 obtained under Subsection 53-10-404.5(1)(a) is filed against the person within one year after
131 the day on which the person is booked; or
132 (ii) all charges arising from the same criminal episode for which the DNA specimen
133 was obtained under Subsection 53-10-404.5(1)(a) have been resolved by a final judgment of
134 dismissal with prejudice or acquittal[; and].
135 [(b) the department determines that the person has not otherwise become obligated to
136 submit a DNA specimen as a result of any separate conviction or juvenile adjudication for any
137 offense listed in Subsection 53-10-403(2).]
138 (7) A court order issued under Subsection (6)(a) may be accompanied by a written
139 notice to the person advising that state law provides for expungement of criminal charges if the
140 charge is resolved by a final judgment of dismissal or acquittal.
141 [(8) Upon receipt of]
142 (8) The department shall destroy the person’s DNA specimen, and associated record,
143 and remove the person’s DNA record from the database described in Subsection (1)(d), if:
144 (a) the person provides the department with:
145 (i) a court order for destruction [pursuant to] described in Subsection (6)(a), and
146 [receipt of] a certified copy of:
147 (A) the court order reversing the conviction, judgment, or order[, a certified copy of];
148 (B) a court order to set aside the conviction[, or a certified copy of]; or
149 (C) the dismissal or acquittal of the charge regarding which the person was arrested[,
150 the Department of Public Safety shall destroy any specimen received from the person, any
151 physical evidence obtained from that specimen, and any criminal identification records
152 pertaining to the person, unless prohibited under Subsection (6)(b).]; or
153 (ii) a written request for destruction of the DNA specimen, and associated record, and
154 removal of the DNA record from the database described in Subsection (6)(b), and a certified
155 copy of:
156 (A) a declination to prosecute from the prosecutor; or
157 (B) a court document that indicates all charges have been resolved by a final judgment
158 of dismissal with prejudice or acquittal; and
159 (b) the department determines that the person is not obligated to submit a DNA
160 specimen as a result of a separate conviction or juvenile adjudication for an offense listed in
161 Subsection 53-10-403(2).
162 (9) The department [is not required to destroy any item of physical evidence obtained
163 from a DNA specimen if evidence relating to another person subject to the provisions of
164 Sections 53-10-404 and 53-10-405 would as a result be destroyed.] may not destroy a person’s
165 DNA specimen or remove a person’s DNA record from the database described in Subsection
166 (1)(d) if the person has a prior conviction or a pending charge for which collection of a sample
167 is authorized in accordance with Section 53-10-404.
168 (10) A DNA specimen, [physical evidence] associated record, or criminal identification
169 record created in connection with that specimen may not be affected by an order to set aside a
170 conviction, except under the provisions of this section.
171 (11) If funding is not available for analysis of any of the DNA specimens collected
172 under this part, the bureau shall store the collected specimens until funding is made available
173 for analysis through state or federal funds.
174 (12) (a) (i) A person who, due to the person’s employment or authority, has possession
175 of or access to individually identifiable DNA information contained in the state criminal
176 identification database or the state DNA specimen repository may not willfully disclose the
177 information in any manner to any individual, agency, or entity that is not entitled under this
178 part to receive the information.
179 (ii) A person may not willfully obtain individually identifiable DNA information from
180 the state criminal identification database or the state DNA repository other than as authorized
181 by this part.
182 (iii) A person may not willfully analyze a DNA specimen for any purpose, or to obtain
183 any information other than as required under this part.
184 (iv) A person may not willfully fail to destroy or fail to ensure the destruction of a
185 DNA specimen when destruction is required by this part or by court order.
186 (b) (i) A person who violates Subsection (12)(a)(i), (ii), or (iii) is guilty of a third
187 degree felony.
188 (ii) A person who violates Subsection (12)(a)(iv) is guilty of a class B misdemeanor.
