Colorado Criminal Law: A New Law Requiring The Collection of DNA When Charged With a Felony

In 2009 the Colorado State Legislature Passed S.B. 09-241 concerning DNA testing of adults arrested for a felony.

Beginning September 30, 2010, the law requires each adult arrested for or charged with a felony to submit to a DNA test. It directs that in most cases, the arresting agency shall take a biological sample for testing purposes during the booking process. In all other cases, directs that the sample be taken at the person’s first court appearance, if practical.

It also directs the Colorado Bureau of Investigation (CBI) to test the samples collected.

It also requires the CBI to file and maintain the results of such DNA testing in a database only after receiving confirmation that the person has been charged with a felony… directing the CBI to furnish the results to a law enforcement agency on request.

The law permits the resulting DNA profile to be expunged from the database if:

the person is not charged with a felony;

the felony charges are dismissed; or

the person is found not guilty of the felony charge.

The law requires the court to advise the person of his or her expungement rights at the person’s first appearance, and requires a re-advisement by the court or the district attorney if an action occurs that triggers the right of expungement.

It also directs a person who wants his or her record expunged from the database to submit a written request to CBI. On receipt of the request, the law directs CBI to contact the district attorney to verify that the person qualifies for expungement and requires CBI to send notice to the person indicating whether the record has been expunged.

Finally, and most importantly, beginning July 1, 2009, the new allows a defendant to request a search of a DNA database if the court determines there is a reasonable probability that a search will produce exculpatory or mitigating evidence.