WSR 14-17-108 PERMANENT RULES WASHINGTON STATE PATROL [Filed August 19, 2014, 1:50 p.m., effective September 19, 2014] Effective Date of Rule: Thirty-one days after filing.
Purpose: The proposed changes would provide updated language and cleanup to the entire chapter to ensure that there are no conflicts with the existing law.
Citation of Existing Rules Affected by this Order: Amending WAC 446-75-010, 446-75-020, 446-75-030, 446-75-040, 446-75-050, 446-75-060, 446-75-070, and 446-75-080.
Statutory Authority for Adoption: RCW 43.43.759.
Adopted under notice filed as WSR 14-14-017 on June 23, 2014.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 8, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 8, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: August 6, 2014.
John R. Batiste
Chief
AMENDATORY SECTION (Amending WSR 03-08-053, filed 3/28/03, effective 4/28/03)
WAC 446-75-010 Definitions.
(((1) "DNA" wherever used in this chapter shall mean deoxyribonucleic acid.
(2) "Convicted felon" wherever used in this chapter shall mean:
(a) Every individual convicted after July 1, 1990, of a felony defined as a sex or violent offense under RCW 9.94A.030;
(b) Every individual convicted on or before July 1, 1990, of a felony defined as a sex or violent offense under RCW 9.94A.030, who is still incarcerated on or after July 25, 1999;
(c) Every juvenile adjudicated guilty after July 1, 1994, of a felony defined as a sex or violent offense under RCW 9.94A.030 or an equivalent juvenile offense;
(d) Every juvenile adjudicated guilty on or before July 1, 1994, of a felony defined as a sex or violent offense under RCW 9.94A.030 or an equivalent juvenile offense, who is still incarcerated on or after July 25, 1999;
(e) Every adult or juvenile convicted of a felony, stalking under RCW 9A.46.100, harassment under RCW 9A.46.020, or communicating with a minor for immoral purposes under RCW 9.68A.090, or adjudicated guilty of an equivalent juvenile offense, on or after July 1, 2002;
(f) Every adult or juvenile convicted of a felony, stalking under RCW 9A.46.100, harassment under RCW 9A.46.020, or communicating with a minor for immoral purposes under RCW 9.68A.090, or adjudicated guilty of an equivalent juvenile offense, before July 1, 2002, who is still incarcerated on or after July 1, 2002.
(3) "DNA identification" wherever used in this chapter shall mean the identification of a particular individual from the chemical structure of the DNA contained in cells of the human body.
(4) "Biological sample" wherever used in this chapter means a buccal swab (a swabbing of the inside of the mouth between the cheek and gum). The Washington state patrol crime laboratory division will supply a buccal swab collection kit to any agency responsible for collecting convicted felon samples for DNA typing. If there is a reason that a buccal swab cannot be obtained, a bloodstain collected by a finger stick may be taken from the individual.)) (1) "Applicant" means a person requesting the patrol to expunge his or her DNA record retained in the patrol's DNA identification system.
(2) "Biological sample" means a buccal swab (a swabbing of the inside of the mouth between the cheek and gum) using a buccal swab collection kit provided by the patrol. When a buccal swab cannot be obtained from the convicted offender, a bloodstain collected by a finger stick may be taken from the convicted offender as a biological sample under this chapter.
(3) "DNA" means deoxyribonucleic acid.
(4) "DNA identification" means a DNA profile developed from cells of the human body that identifies a person.
(5) "DNA record" means the convicted offender's DNA profile, the originating agency identifier, the specimen identification number, and the identification of the patrol's personnel associated with the DNA profile analysis.
(6) "Convicted offender" means a person who is required to submit a biological sample pursuant to RCW 43.43.754.
(7) "DNA identification system" means a data base containing the DNA records from individuals convicted of felony offenses and other crimes as specified in RCW 43.43.754.
(8) "Patrol" means the chief of the Washington state patrol or his or her designee.
AMENDATORY SECTION (Amending WSR 03-08-053, filed 3/28/03, effective 4/28/03)
WAC 446-75-020 Purpose.
The purpose of this chapter is to provide procedures for the operation of DNA identification systems as required by RCW 43.43.752 through 43.43.758, ((and to prohibit the improper use of DNA identification data as required by RCW 43.43.759)) identify appropriate sources and collection methods for biological samples needed for purposes of DNA identification analysis, and prohibit the use of DNA identification data obtained pursuant to this chapter for any research or other purpose that is not related to a criminal investigation, to the identification of human remains or to missing persons or to improve the operation of the DNA identification system.
AMENDATORY SECTION (Amending WSR 03-08-053, filed 3/28/03, effective 4/28/03)
WAC 446-75-030 Purposes of DNA identification.
DNA identification systems as authorized by chapter 43.43 RCW ((shall)) will be used only for three purposes:
(1) Identification of possible suspects in criminal investigations;
(2) Retention of convicted ((felon)) offender DNA identification ((databanking)) as required by RCW 43.43.754; and
(3) Identification of human remains or missing persons. Nothing in this section prohibits the submission of results derived from the biological samples to the Federal Bureau of Investigation combined DNA index system.
AMENDATORY SECTION (Amending WSR 91-11-046, filed 5/14/91, effective 6/14/91)
WAC 446-75-040 DNA identification system established.
The DNA identification system established by the ((chief of the Washington state)) patrol ((shall)) must be compatible with the method(s) used by the Federal Bureau of Investigation. DNA identification systems established by ((other)) local law enforcement agencies ((shall)) must be compatible ((to the current Washington state patrol)) with the patrol's DNA identification system.
AMENDATORY SECTION (Amending WSR 91-11-046, filed 5/14/91, effective 6/14/91)
WAC 446-75-050 DNA identification system analytical procedures.
Law enforcement agencies establishing a DNA identification system ((shall)) must maintain written analytical procedures necessary to complete the analyses. A copy of the analytical procedures ((shall be forwarded)) must be submitted to the ((chief of the Washington state)) patrol to ensure compatibility with the ((Washington state patrol system. The chief shall approve or disapprove the procedures utilizing the standards set forth for DNA identification by the Federal Bureau of Investigation prior to any implementation by the submitting agency. The appeal process for any disapproval shall be)) patrol's DNA identification system. Before the law enforcement agency implements a DNA identification system, the patrol must approve that agency's analytical procedures. The patrol will use Federal Bureau of Investigation's standards for DNA identification to approve or deny the law enforcement agency's analytical procedures. If the patrol denies the law enforcement agency's analytical procedures, the agency may not implement the DNA identification system. The law enforcement agency may appeal the patrol's denial in accordance with the provisions of the Administrative Procedure Act (chapter 34.05 RCW).
AMENDATORY SECTION (Amending WSR 03-08-053, filed 3/28/03, effective 4/28/03)
WAC 446-75-060 Collection of biological sample for the DNA ((databank)) identification system—Procedures—Time frame.
(1) The collection, preservation, and shipment of ((blood)) biological samples obtained from convicted ((felons)) offenders pursuant to RCW 43.43.754 for the ((convicted felon databank program shall)) patrol's DNA identification system must be in conformance with ((the "Protocol for the Collection of Biological Sample for the Convicted Felon DNA Program" as prepared)) protocols established by the ((Washington state)) patrol ((crime laboratory division)). Copies of the current protocol may be obtained from the Washington State Patrol Crime Laboratory Division, ((Olympia, WA.
(a) If the convicted felon does not serve a term of confinement in a facility operated by the department of corrections or the department of social and health services, and does serve a term of confinement in a city or county jail facility, officials at the city or county jail facility shall be responsible for obtaining the biological sample either as part of the intake process if the person is convicted on or after July 1, 2002, or within a reasonable time after July 1, 2002, but prior to the person's release, if the person was incarcerated before July 1, 2002.
(b) If the convicted felon serves a term of confinement in a facility operated by the department of corrections or the department of social and health services, officials at the facility shall be responsible for obtaining the biological sample either as part of the intake process if the person is convicted on or after July 1, 2002, or within a reasonable time after July 1, 2002, but prior to the person's release, if the person was incarcerated before July 1, 2002.
(c) If the convicted felon is sentenced on or after July 1, 2002, and does not serve a term of confinement in a city, county or state facility, the local police department or sheriff's office shall be responsible for obtaining the biological sample after sentencing)) 2203 Airport Way S., Suite 250, Seattle, WA 98134.
(2) ((Results from DNA identifications made from blood samples obtained from convicted felons under RCW 43.43.754 shall be submitted to the chief of the Washington state patrol and entered into the Washington state patrol DNA databank. Such results shall reside in the databank)) The DNA profile resulting from the convicted offender's biological sample will be entered into the patrol's DNA identification system. The patrol will retain the convicted offender's DNA record in its DNA identification system until expungement pursuant to WAC 446-75-070 or the patrol determines that the DNA record no longer qualifies to be retained in the DNA identification system.
AMENDATORY SECTION (Amending WSR 03-08-053, filed 3/28/03, effective 4/28/03)
WAC 446-75-070 Expungement of DNA data.
(((1) A person desiring the destruction of his DNA identification data from a DNA databank shall make his request therefor on a form furnished by the chief of the Washington state patrol. The request shall)) An applicant may request the patrol to expunge his or her DNA record from the patrol's DNA identification system. The request must comply with this subsection and be mailed or delivered to the Washington State Patrol Crime Laboratory Division((, Olympia)) Headquarters, 2203 Airport Way S., Suite 250, Seattle, WA 98134.
(((2) The request shall be completed, signed by the person whose record is sought to be expunged. The signature shall be notarized. It shall include the address of the applicant, the printed name and the address of the witness to the applicant's signature and such other information requested on the application as identifies the applicant and the offense for which the request of expungement is made.
(3) The request shall include proof that the person making the request for expungement is the same person whose DNA data is sought to be expunged. Such proof shall include a sworn statement of identity. When requested by the patrol, fingerprints and a blood sample shall also be required from the applicant.
(4) The request shall include proof that the person making the request has no record as a convicted felon under RCW 43.43.754 or has other lawful grounds for expungement. Such proof shall include a sworn statement from the applicant, and not-guilty or released without conviction documentation from such criminal charges. Where the finding or release is based on an order of a court, the applicant shall furnish a certified true copy of the court order.
(5) The Washington state patrol crime laboratory has discretion to deny the request for expungement.)) (1) An applicant's expungement request must:
(a) Be in writing and include the applicant's printed name, signature, address, and thumbprints; and
(b) Include certified copies of final court orders vacating a conviction that required the applicant to submit a biological sample under RCW 43.43.754. The order vacating the conviction must be based on a reversal of the conviction. The patrol will not expunge a sample based on a dismissal entered after a period of probation, suspension, or deferral of sentence.
(2) The patrol may require the applicant to provide additional information that is necessary to determine or verify that the applicant qualifies for expungement.
(3) After the patrol determines that the applicant qualifies for expungement, the patrol will:
(a) Destroy the applicant's biological sample and expunge the DNA record from the patrol's DNA identification system unless the patrol determines that the applicant is required to submit a DNA sample pursuant to RCW 43.43.754.
(b) Remove the applicant's identifying information from the laboratory's case management system.
(4) The patrol is not required to destroy an item of physical evidence obtained from a sample if documentation relating to another person would thereby be destroyed.
(5) Any identification, warrant, probable cause to arrest, or arrest based upon a match from the DNA identification system is not invalidated due to a failure to expunge or a delay in expunging records.
AMENDATORY SECTION (Amending WSR 03-08-053, filed 3/28/03, effective 4/28/03)
WAC 446-75-080 DNA identification data—Prohibitions.
The use of any data obtained from DNA identification procedures conducted pursuant to this chapter is prohibited for any research or other purpose not related to a criminal investigation, to identification of human remains or missing persons, or to improving the operation of the DNA identification system established by the ((Washington state)) patrol and authorized by RCW 43.43.752 through 43.43.759.
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