Introduced Version
SENATE BILL No. 263
_____
DIGEST OF INTRODUCED BILL
Citations Affected: IC 35-33-5-5; IC 35-38-7-14.
Synopsis: Evidence preservation requirements. Establishes additional
requirements for the disposition of property held as evidence that may
contain biological evidence related to an offense, including matters
involving postconviction DNA testing and analysis.
Effective: July 1, 2022.
Doriot
January 10, 2022, read first time and referred to Committee on Corrections and Criminal
Law.
2022 IN 263—LS 6984/DI 131 Introduced
Second Regular Session of the 122nd General Assembly (2022)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in this style type. Also, the
word NEW will appear in that style type in the introductory clause of each SECTION that adds
a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
between statutes enacted by the 2021 Regular Session of the General Assembly.
SENATE BILL No. 263
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
Be it enacted by the General Assembly of the State of Indiana:
1 SECTION 1. IC 35-33-5-5, AS AMENDED BY P.L.1-2007,
2 SECTION 225, IS AMENDED TO READ AS FOLLOWS
3 [EFFECTIVE JULY 1, 2022]: Sec. 5. (a) All items of property seized
4 by any law enforcement agency as a result of an arrest, search warrant,
5 or warrantless search, shall be securely held by the law enforcement
6 agency under the order of the court trying the cause, except as provided
7 in this section.
8 (b) Evidence that consists of property obtained unlawfully from its
9 owner may be returned by the law enforcement agency to the owner
10 before trial, in accordance with IC 35-43-4-4(h).
11 (c) Following the final disposition of the cause at trial level or any
12 other final disposition the following shall be done:
13 (1) Property which may be lawfully possessed shall be returned
14 to its rightful owner, if known. If ownership is unknown, a
15 reasonable attempt shall be made by the law enforcement agency
16 holding the property to ascertain ownership of the property. After
17 ninety (90) days from the time:
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1 (A) the rightful owner has been notified to take possession of
2 the property; or
3 (B) a reasonable effort has been made to ascertain ownership
4 of the property;
5 the law enforcement agency holding the property shall, at a
6 convenient time, dispose of this property at a public auction. The
7 proceeds of this property shall be paid into the county general
8 fund.
9 (2) Except as provided in subsection (e), property, the possession
10 of which is unlawful, shall be destroyed by the law enforcement
11 agency holding it sixty (60) days after final disposition of the
12 cause.
13 (3) A firearm that has been seized from a person who is
14 dangerous (as defined in IC 35-47-14-1) shall be retained,
15 returned, or disposed of in accordance with IC 35-47-14.
16 (d) Except as provided in subsection (f), if any property described
17 in subsection (c) was admitted into evidence in the cause, the property
18 shall be disposed of in accordance with an order of the court trying the
19 cause.
20 (e) A law enforcement agency may destroy or cause to be destroyed
21 chemicals, controlled substances, or chemically contaminated
22 equipment (including drug paraphernalia as described in
23 IC 35-48-4-8.5) associated with the illegal manufacture of drugs or
24 controlled substances without a court order if all the following
25 conditions are met:
26 (1) The law enforcement agency collects and preserves a
27 sufficient quantity of the chemicals, controlled substances, or
28 chemically contaminated equipment to demonstrate that the
29 chemicals, controlled substances, or chemically contaminated
30 equipment was associated with the illegal manufacture of drugs
31 or controlled substances.
32 (2) The law enforcement agency takes photographs of the illegal
33 drug manufacturing site that accurately depict the presence and
34 quantity of chemicals, controlled substances, and chemically
35 contaminated equipment.
36 (3) The law enforcement agency completes a chemical inventory
37 report that describes the type and quantities of chemicals,
38 controlled substances, and chemically contaminated equipment
39 present at the illegal manufacturing site.
40 The photographs and description of the property shall be admissible
41 into evidence in place of the actual physical evidence.
42 (f) For purposes of preserving the record of any conviction on
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1 appeal, the following shall be done:
2 (1) Subject to subdivision (2), a photograph demonstrating the
3 nature of the property, and an adequate description of the property
4 must be obtained before the disposition of the property. In the
5 event of a retrial, the photograph and description of the property
6 shall be admissible into evidence in place of the actual physical
7 evidence. All other rules of law governing the admissibility of
8 evidence shall apply to the photographs.
9 (2) All evidence for a violent offense (as defined in
10 IC 11-12-3.7-6) in the law enforcement agency's possession or
11 control that could be subjected to DNA testing and analysis
12 shall be preserved by the law enforcement agency for twenty
13 (20) years from the date the defendant's conviction becomes
14 final. If:
15 (A) an investigation did not result in a conviction, the
16 evidence shall be preserved until the expiration of the
17 statute of limitations for the alleged offense; or
18 (B) the preservation of the evidence is impracticable, the
19 law enforcement agency shall remove portions of the
20 material evidence likely to contain biological evidence
21 related to the offense, in a quantity sufficient to permit
22 future DNA testing before returning or disposing of the
23 physical evidence.
24 Any records, notes, identification numbers, photographs, and
25 other documentation relating to the process of preserving
26 DNA described in this subdivision shall be admissible into
27 evidence at any subsequent hearing or trial.
28 (g) The law enforcement agency disposing of property in any
29 manner provided in subsection (b), (c), or (e), or (f), shall maintain
30 certified records of any disposition under subsection (b), (c), or (e), or
31 (f). Disposition by destruction of property shall be witnessed by two (2)
32 persons who shall also attest to the destruction.
33 (h) This section does not affect the procedure for the disposition of
34 firearms seized by a law enforcement agency.
35 (i) A law enforcement agency that disposes of property by auction
36 under this section shall permanently stamp or otherwise permanently
37 identify the property as property sold by the law enforcement agency.
38 (j) Upon motion of the prosecuting attorney, the court shall order
39 property seized under IC 34-24-1 transferred, subject to the perfected
40 liens or other security interests of any person in the property, to the
41 appropriate federal authority for disposition under 18 U.S.C. 981(e), 19
42 U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations adopted
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1 by the United States Department of Justice.
2 (k) The law enforcement agency responsible for disposing of
3 property under subsection (f)(2), shall do the following:
4 (1) Maintain a record of the preserved evidence.
5 (2) Schedule a disposal date for the preserved evidence.
6 (3) Provide notice to the last known address of the defendant
7 or the defendant's attorney when:
8 (A) the preserved evidence is removed from its secure
9 location; or
10 (B) the date the preserved evidence has been marked for
11 disposal.
12 The defendant or the defendant's attorney must provide the most
13 current address of the defendant or the defendant's attorney to the
14 law enforcement agency responsible for disposing of property in
15 order to effectively receive proper notice. If the law enforcement
16 agency responsible for disposing of property does not have the
17 defendant's or the defendant's attorney's most current address on
18 file, then the notice requirement is deemed waived.
19 (l) Failure of a law enforcement agency to follow the procedures
20 described in this section may constitute contempt of court.
21 However, failure to follow the procedures described in this section
22 shall not be grounds for reversal of a conviction unless the
23 defendant proves a violation of the defendant's due process rights.
24 SECTION 2. IC 35-38-7-14 IS AMENDED TO READ AS
25 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 14. (a) If a petition for
26 DNA testing and analysis is filed under this chapter:
27 (1) except as provided in IC 35-33-5-5(f), the court shall order
28 the state to preserve during the pendency of the proceeding all
29 evidence in the state's possession or control that could be
30 subjected to DNA testing and analysis for an additional twenty
31 (20) years;
32 (2) the state shall:
33 (A) prepare an inventory of the evidence in the possession or
34 control of the state that could be subjected to DNA testing and
35 analysis; and
36 (B) submit a copy of the inventory to defense counsel and the
37 court; and
38 (3) if evidence is intentionally destroyed after the court orders its
39 preservation, the court may impose appropriate sanctions.
40 (b) Except as provided in IC 35-33-5-5(f), the evidence described
41 in this section shall be preserved for an additional twenty (20)
42 years from the defendant's:
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1 (1) termination of the appeal;
2 (2) retrial; or
3 (3) subsequent appeal and termination;
4 whichever is later, unless an action challenging the conviction or
5 sentence or postconviction action is pending.
2022 IN 263—LS 6984/DI 131