Indiana 2022 Regular Session

Indiana House Bill HB1144 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	HB1144.1
2	2	January 13, 2022
3	3	HOUSE BILL No. 1144
4	4	_____
5	5	DIGEST OF HB 1144 (Updated January 12, 2022 2:57 pm - DI 131)
6	6	Citations Affected: IC 35-33; IC 35-38.
7	7	Synopsis: Evidence preservation requirements. Establishes additional
8	8	requirements for the disposition of property held as evidence that may
9	9	contain biological evidence related to an offense, including matters
10	10	involving postconviction DNA testing and analysis.
11	11	Effective: July 1, 2022.
12	12	Steuerwald
13	13	January 6, 2022, read first time and referred to Committee on Courts and Criminal Code.
14	14	January 13, 2022, amended, reported — Do Pass.
15	15	HB 1144—LS 6975/DI 131 January 13, 2022
16	16	Second Regular Session of the 122nd General Assembly (2022)
17	17	PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
18	18	Constitution) is being amended, the text of the existing provision will appear in this style type,
19	19	additions will appear in this style type, and deletions will appear in this style type.
20	20	Additions: Whenever a new statutory provision is being enacted (or a new constitutional
21	21	provision adopted), the text of the new provision will appear in this style type. Also, the
22	22	word NEW will appear in that style type in the introductory clause of each SECTION that adds
23	23	a new provision to the Indiana Code or the Indiana Constitution.
24	24	Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
25	25	between statutes enacted by the 2021 Regular Session of the General Assembly.
26	26	HOUSE BILL No. 1144
27	27	A BILL FOR AN ACT to amend the Indiana Code concerning
28	28	criminal law and procedure.
29	29	Be it enacted by the General Assembly of the State of Indiana:
30	30	1 SECTION 1. IC 35-33-5-5, AS AMENDED BY P.L.1-2007,
31	31	2 SECTION 225, IS AMENDED TO READ AS FOLLOWS
32	32	3 [EFFECTIVE JULY 1, 2022]: Sec. 5. (a) All items of property seized
33	33	4 by any law enforcement agency as a result of an arrest, search warrant,
34	34	5 or warrantless search, shall be securely held by the law enforcement
35	35	6 agency under the order of the court trying the cause, except as provided
36	36	7 in this section.
37	37	8 (b) Evidence that consists of property obtained unlawfully from its
38	38	9 owner may be returned by the law enforcement agency to the owner
39	39	10 before trial, in accordance with IC 35-43-4-4(h).
40	40	11 (c) Following the final disposition of the cause at trial level or any
41	41	12 other final disposition the following shall be done:
42	42	13 (1) Property which may be lawfully possessed shall be returned
43	43	14 to its rightful owner, if known. If ownership is unknown, a
44	44	15 reasonable attempt shall be made by the law enforcement agency
45	45	16 holding the property to ascertain ownership of the property. After
46	46	17 ninety (90) days from the time:
47	47	HB 1144—LS 6975/DI 131 2
48	48	1 (A) the rightful owner has been notified to take possession of
49	49	2 the property; or
50	50	3 (B) a reasonable effort has been made to ascertain ownership
51	51	4 of the property;
52	52	5 the law enforcement agency holding the property shall, at a
53	53	6 convenient time, dispose of this property at a public auction. The
54	54	7 proceeds of this property shall be paid into the county general
55	55	8 fund.
56	56	9 (2) Except as provided in subsection (e), property, the possession
57	57	10 of which is unlawful, shall be destroyed by the law enforcement
58	58	11 agency holding it sixty (60) days after final disposition of the
59	59	12 cause.
60	60	13 (3) A firearm that has been seized from a person who is
61	61	14 dangerous (as defined in IC 35-47-14-1) shall be retained,
62	62	15 returned, or disposed of in accordance with IC 35-47-14.
63	63	16 (d) Except as provided in subsection (g), if any property described
64	64	17 in subsection (c) was admitted into evidence in the cause, the property
65	65	18 shall be disposed of in accordance with an order of the court trying the
66	66	19 cause.
67	67	20 (e) A law enforcement agency may destroy or cause to be destroyed
68	68	21 chemicals, controlled substances, or chemically contaminated
69	69	22 equipment (including drug paraphernalia as described in
70	70	23 IC 35-48-4-8.5) associated with the illegal manufacture of drugs or
71	71	24 controlled substances without a court order if all the following
72	72	25 conditions are met:
73	73	26 (1) The law enforcement agency collects and preserves a
74	74	27 sufficient quantity of the chemicals, controlled substances, or
75	75	28 chemically contaminated equipment to demonstrate that the
76	76	29 chemicals, controlled substances, or chemically contaminated
77	77	30 equipment was associated with the illegal manufacture of drugs
78	78	31 or controlled substances.
79	79	32 (2) The law enforcement agency takes photographs of the illegal
80	80	33 drug manufacturing site that accurately depict the presence and
81	81	34 quantity of chemicals, controlled substances, and chemically
82	82	35 contaminated equipment.
83	83	36 (3) The law enforcement agency completes a chemical inventory
84	84	37 report that describes the type and quantities of chemicals,
85	85	38 controlled substances, and chemically contaminated equipment
86	86	39 present at the illegal manufacturing site.
87	87	40 The photographs and description of the property shall be admissible
88	88	41 into evidence in place of the actual physical evidence.
89	89	42 (f) For purposes of preserving the record of any conviction on
90	90	HB 1144—LS 6975/DI 131 3
91	91	1 appeal, a photograph demonstrating the nature of the property, and an
92	92	2 adequate description of the property must be obtained before the
93	93	3 disposition of the property. In the event of a retrial, the photograph and
94	94	4 description of the property shall be admissible into evidence in place
95	95	5 of the actual physical evidence. All other rules of law governing the
96	96	6 admissibility of evidence shall apply to the photographs.
97	97	7 (g) All evidence for a violent offense (as defined in
98	98	8 IC 11-12-3.7-6) in the law enforcement agency's possession or
99	99	9 control that could be subjected to DNA testing and analysis shall
100	100	10 be preserved by the law enforcement agency for twenty (20) years
101	101	11 from the date the defendant's conviction becomes final. In cases
102	102	12 where an investigation did not result in a conviction, the evidence
103	103	13 shall be preserved until the expiration of the statute of limitations
104	104	14 for the alleged offense. If the preservation of the evidence is
105	105	15 impracticable, the law enforcement agency shall remove portions
106	106	16 of the material evidence likely to contain biological evidence
107	107	17 related to the offense, in a quantity sufficient to permit future DNA
108	108	18 testing before returning or disposing of the physical evidence. At
109	109	19 subsequent hearings or trials, all records, notes, identification
110	110	20 numbers, photographs, and other documentation relating to the
111	111	21 preservation of biological evidence shall be admissible into
112	112	22 evidence.
113	113	23 (g) (h) The law enforcement agency disposing of property in any
114	114	24 manner provided in subsection (b), (c), or (e), or (g), shall maintain
115	115	25 certified records of any disposition under subsection (b), (c), or (e), or
116	116	26 (g). Disposition by destruction of property shall be witnessed by two
117	117	27 (2) persons who shall also attest to the destruction.
118	118	28 (h) (i) This section does not affect the procedure for the disposition
119	119	29 of firearms seized by a law enforcement agency.
120	120	30 (i) (j) A law enforcement agency that disposes of property by
121	121	31 auction under this section shall permanently stamp or otherwise
122	122	32 permanently identify the property as property sold by the law
123	123	33 enforcement agency.
124	124	34 (j) (k) Upon motion of the prosecuting attorney, the court shall order
125	125	35 property seized under IC 34-24-1 transferred, subject to the perfected
126	126	36 liens or other security interests of any person in the property, to the
127	127	37 appropriate federal authority for disposition under 18 U.S.C. 981(e), 19
128	128	38 U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations adopted
129	129	39 by the United States Department of Justice.
130	130	40 (l) The law enforcement agency responsible for disposing of
131	131	41 property under subsection (g), shall do the following:
132	132	42 (1) Maintain a record of the preserved evidence.
133	133	HB 1144—LS 6975/DI 131 4
134	134	1 (2) Schedule a disposal date for the preserved evidence.
135	135	2 (3) Provide notice to the last known address of the defendant
136	136	3 or the defendant's attorney when:
137	137	4 (A) the preserved evidence is removed from its secure
138	138	5 location; or
139	139	6 (B) the date the preserved evidence has been marked for
140	140	7 disposal.
141	141	8 The defendant or the defendant's attorney must provide the most
142	142	9 current address of the defendant or the defendant's attorney to the
143	143	10 law enforcement agency responsible for disposing of property in
144	144	11 order to effectively receive proper notice. If the law enforcement
145	145	12 agency responsible for disposing of property does not have the
146	146	13 defendant's or the defendant's attorney's most current address on
147	147	14 file, then the notice requirement is deemed waived.
148	148	15 (m) Failure of a law enforcement agency to follow the
149	149	16 procedures described in this section may constitute contempt of
150	150	17 court. However, failure to follow the procedures described in this
151	151	18 section shall not be grounds for reversal of a conviction unless the
152	152	19 defendant proves a violation of the defendant's due process rights.
153	153	20 (n) Nothing in subsection (g) shall preclude a law enforcement
154	154	21 agency from submitting biological evidence to forensic DNA testing
155	155	22 or analysis, at its own initiative or at the request of a prosecuting
156	156	23 attorney, if such testing will not consume the remainder of the
157	157	24 evidence. If such testing would consume the remainder of the
158	158	25 evidence, the prosecuting attorney may seek a court order allowing
159	159	26 such testing under IC 35-38-7-17.
160	160	27 SECTION 2. IC 35-38-7-14 IS AMENDED TO READ AS
161	161	28 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 14. (a) If a petition for
162	162	29 DNA testing and analysis is filed under this chapter:
163	163	30 (1) except as provided in IC 35-33-5-5(g), the court shall order
164	164	31 the state to preserve during the pendency of the proceeding all
165	165	32 evidence in the state's possession or control that could be
166	166	33 subjected to DNA testing and analysis for an additional twenty
167	167	34 (20) years;
168	168	35 (2) the state shall:
169	169	36 (A) prepare an inventory of the evidence in the possession or
170	170	37 control of the state that could be subjected to DNA testing and
171	171	38 analysis; and
172	172	39 (B) submit a copy of the inventory to defense counsel and the
173	173	40 court; and
174	174	41 (3) if evidence is intentionally destroyed after the court orders its
175	175	42 preservation, the court may impose appropriate sanctions.
176	176	HB 1144—LS 6975/DI 131 5
177	177	1 (b) In the event that DNA testing and analysis required under
178	178	2 this chapter results in a vacated conviction, all biological evidence
179	179	3 shall continue to be preserved in accordance with IC 35-33-5-5(g),
180	180	4 and for an additional twenty (20) years from the date a subsequent
181	181	5 conviction of any person becomes final, or if there is no subsequent
182	182	6 conviction, then for the remainder of the statute of limitations for
183	183	7 the offense.
184	184	HB 1144—LS 6975/DI 131 6
185	185	COMMITTEE REPORT
186	186	Mr. Speaker: Your Committee on Courts and Criminal Code, to
187	187	which was referred House Bill 1144, has had the same under
188	188	consideration and begs leave to report the same back to the House with
189	189	the recommendation that said bill be amended as follows:
190	190	Page 1, delete lines 1 through 17, begin a new paragraph and insert:
191	191	"SECTION 1. IC 35-33-5-5, AS AMENDED BY P.L.1-2007,
192	192	SECTION 225, IS AMENDED TO READ AS FOLLOWS
193	193	[EFFECTIVE JULY 1, 2022]: Sec. 5. (a) All items of property seized
194	194	by any law enforcement agency as a result of an arrest, search warrant,
195	195	or warrantless search, shall be securely held by the law enforcement
196	196	agency under the order of the court trying the cause, except as provided
197	197	in this section.
198	198	(b) Evidence that consists of property obtained unlawfully from its
199	199	owner may be returned by the law enforcement agency to the owner
200	200	before trial, in accordance with IC 35-43-4-4(h).
201	201	(c) Following the final disposition of the cause at trial level or any
202	202	other final disposition the following shall be done:
203	203	(1) Property which may be lawfully possessed shall be returned
204	204	to its rightful owner, if known. If ownership is unknown, a
205	205	reasonable attempt shall be made by the law enforcement agency
206	206	holding the property to ascertain ownership of the property. After
207	207	ninety (90) days from the time:
208	208	(A) the rightful owner has been notified to take possession of
209	209	the property; or
210	210	(B) a reasonable effort has been made to ascertain ownership
211	211	of the property;
212	212	the law enforcement agency holding the property shall, at a
213	213	convenient time, dispose of this property at a public auction. The
214	214	proceeds of this property shall be paid into the county general
215	215	fund.
216	216	(2) Except as provided in subsection (e), property, the possession
217	217	of which is unlawful, shall be destroyed by the law enforcement
218	218	agency holding it sixty (60) days after final disposition of the
219	219	cause.
220	220	(3) A firearm that has been seized from a person who is
221	221	dangerous (as defined in IC 35-47-14-1) shall be retained,
222	222	returned, or disposed of in accordance with IC 35-47-14.
223	223	(d) Except as provided in subsection (g), if any property described
224	224	in subsection (c) was admitted into evidence in the cause, the property
225	225	shall be disposed of in accordance with an order of the court trying the
226	226	HB 1144—LS 6975/DI 131 7
227	227	cause.
228	228	(e) A law enforcement agency may destroy or cause to be destroyed
229	229	chemicals, controlled substances, or chemically contaminated
230	230	equipment (including drug paraphernalia as described in
231	231	IC 35-48-4-8.5) associated with the illegal manufacture of drugs or
232	232	controlled substances without a court order if all the following
233	233	conditions are met:
234	234	(1) The law enforcement agency collects and preserves a
235	235	sufficient quantity of the chemicals, controlled substances, or
236	236	chemically contaminated equipment to demonstrate that the
237	237	chemicals, controlled substances, or chemically contaminated
238	238	equipment was associated with the illegal manufacture of drugs
239	239	or controlled substances.
240	240	(2) The law enforcement agency takes photographs of the illegal
241	241	drug manufacturing site that accurately depict the presence and
242	242	quantity of chemicals, controlled substances, and chemically
243	243	contaminated equipment.
244	244	(3) The law enforcement agency completes a chemical inventory
245	245	report that describes the type and quantities of chemicals,
246	246	controlled substances, and chemically contaminated equipment
247	247	present at the illegal manufacturing site.
248	248	The photographs and description of the property shall be admissible
249	249	into evidence in place of the actual physical evidence.
250	250	(f) For purposes of preserving the record of any conviction on
251	251	appeal, a photograph demonstrating the nature of the property, and an
252	252	adequate description of the property must be obtained before the
253	253	disposition of the property. In the event of a retrial, the photograph and
254	254	description of the property shall be admissible into evidence in place
255	255	of the actual physical evidence. All other rules of law governing the
256	256	admissibility of evidence shall apply to the photographs.
257	257	(g) All evidence for a violent offense (as defined in
258	258	IC 11-12-3.7-6) in the law enforcement agency's possession or
259	259	control that could be subjected to DNA testing and analysis shall
260	260	be preserved by the law enforcement agency for twenty (20) years
261	261	from the date the defendant's conviction becomes final. In cases
262	262	where an investigation did not result in a conviction, the evidence
263	263	shall be preserved until the expiration of the statute of limitations
264	264	for the alleged offense. If the preservation of the evidence is
265	265	impracticable, the law enforcement agency shall remove portions
266	266	of the material evidence likely to contain biological evidence
267	267	related to the offense, in a quantity sufficient to permit future DNA
268	268	testing before returning or disposing of the physical evidence. At
269	269	HB 1144—LS 6975/DI 131 8
270	270	subsequent hearings or trials, all records, notes, identification
271	271	numbers, photographs, and other documentation relating to the
272	272	preservation of biological evidence shall be admissible into
273	273	evidence.
274	274	(g) (h) The law enforcement agency disposing of property in any
275	275	manner provided in subsection (b), (c), or (e), or (g), shall maintain
276	276	certified records of any disposition under subsection (b), (c), or (e), or
277	277	(g). Disposition by destruction of property shall be witnessed by two
278	278	(2) persons who shall also attest to the destruction.
279	279	(h) (i) This section does not affect the procedure for the disposition
280	280	of firearms seized by a law enforcement agency.
281	281	(i) (j) A law enforcement agency that disposes of property by
282	282	auction under this section shall permanently stamp or otherwise
283	283	permanently identify the property as property sold by the law
284	284	enforcement agency.
285	285	(j) (k) Upon motion of the prosecuting attorney, the court shall order
286	286	property seized under IC 34-24-1 transferred, subject to the perfected
287	287	liens or other security interests of any person in the property, to the
288	288	appropriate federal authority for disposition under 18 U.S.C. 981(e), 19
289	289	U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations adopted
290	290	by the United States Department of Justice.
291	291	(l) The law enforcement agency responsible for disposing of
292	292	property under subsection (g), shall do the following:
293	293	(1) Maintain a record of the preserved evidence.
294	294	(2) Schedule a disposal date for the preserved evidence.
295	295	(3) Provide notice to the last known address of the defendant
296	296	or the defendant's attorney when:
297	297	(A) the preserved evidence is removed from its secure
298	298	location; or
299	299	(B) the date the preserved evidence has been marked for
300	300	disposal.
301	301	The defendant or the defendant's attorney must provide the most
302	302	current address of the defendant or the defendant's attorney to the
303	303	law enforcement agency responsible for disposing of property in
304	304	order to effectively receive proper notice. If the law enforcement
305	305	agency responsible for disposing of property does not have the
306	306	defendant's or the defendant's attorney's most current address on
307	307	file, then the notice requirement is deemed waived.
308	308	(m) Failure of a law enforcement agency to follow the
309	309	procedures described in this section may constitute contempt of
310	310	court. However, failure to follow the procedures described in this
311	311	section shall not be grounds for reversal of a conviction unless the
312	312	HB 1144—LS 6975/DI 131 9
313	313	defendant proves a violation of the defendant's due process rights.
314	314	(n) Nothing in subsection (g) shall preclude a law enforcement
315	315	agency from submitting biological evidence to forensic DNA testing
316	316	or analysis, at its own initiative or at the request of a prosecuting
317	317	attorney, if such testing will not consume the remainder of the
318	318	evidence. If such testing would consume the remainder of the
319	319	evidence, the prosecuting attorney may seek a court order allowing
320	320	such testing under IC 35-38-7-17.".
321	321	Delete pages 2 through 3.
322	322	Page 4, delete lines 1 through 23.
323	323	Page 4, line 27, delete "IC 35-33-5-5(f)," and insert "IC
324	324	35-33-5-5(g),".
325	325	Page 4, delete lines 40 through 42, begin a new paragraph and
326	326	insert:
327	327	"(b) In the event that DNA testing and analysis required under
328	328	this chapter results in a vacated conviction, all biological evidence
329	329	shall continue to be preserved in accordance with IC 35-33-5-5(g),
330	330	and for an additional twenty (20) years from the date a subsequent
331	331	conviction of any person becomes final, or if there is no subsequent
332	332	conviction, then for the remainder of the statute of limitations for
333	333	the offense.".
334	334	Delete page 5.
335	335	Renumber all SECTIONS consecutively.
336	336	and when so amended that said bill do pass.
337	337	(Reference is to HB 1144 as introduced.)
338	338	MCNAMARA
339	339	Committee Vote: yeas 11, nays 0.
340	340	HB 1144—LS 6975/DI 131