(Reprinted with amendments adopted on May 23, 2023)
SECOND REPRINT S.B. 321
- *SB321 _R2 *
SENATE BILL NO. 321–SENATORS KRASNER, D. HARRIS, SEEVERS
GANSERT, OHRENSCHALL; FLORES, NGUYEN, PAZINA,
SCHEIBLE, SPEARMAN AND STONE
MARCH 20, 2023
____________
JOINT SPONSORS: ASSEMBLYMEN THOMAS, GORELOW,
MCARTHUR, KASAMA; MARZOLA, C.H. MILLER,
ORENTLICHER, PETERS, TAYLOR AND WATTS
____________
Referred to Committee on Judiciary
SUMMARY—Revises provisions relating to crimes. (BDR 14-550)
FISCAL NOTE: Effect on Local Government: May have Fiscal Impact.
Effect on the State: Yes.
~
EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.
AN ACT relating to evidence; prohibiting a law enforcement agency
or forensic laboratory from taking certain actions relating
to the DNA profile and DNA record of a survivor of
sexual assault; expanding certain prohibitions against the
use of certain evidence secured in connection with an
investigation or prosecution of a sexual assault; requiring
certain entities to conduct an audit of certain biological
specimens, DNA profiles and DNA records, to the extent
money is available; and providing other matters properly
relating thereto.
Legislative Counsel’s Digest:
Existing law establishes the Sexual Assault Survivors’ Bill of Rights, which 1
grants a survivor certain rights relating to the investigation or prosecution of an 2
alleged sexual assault perpetrated against the survivor. (Chapter 178A of NRS) 3
Among other requirements, the Bill of Rights grants a survivor the right to not have 4
forensic evidence from a sexual assault used: (1) to prosecute the survivor for any 5
misdemeanor or offense related to a controlled substance; or (2) as a basis to search 6
for further evidence of any unrelated misdemeanor or any offense related to a 7
controlled substance that may have been committed by the survivor. (NRS 8
178A.260) Section 6 of this bill expands this right by prohibiting a law 9
enforcement agency from using any biological evidence obtained from the sexual 10
assault forensic evidence kit of a survivor or any biological evidence secured in 11
– 2 –
- *SB321 _R2 *
connection with the investigation or prosecution of the alleged sexual assault of the 12
survivor: (1) to prosecute the survivor for any crime; (2) as a basis to search for 13
further evidence of any criminal offense that may have been committed by the 14
survivor; or (3) for any other purpose that is not directly related to the investigation 15
or prosecution of the alleged sexual assault of the survivor. 16
Existing law prescribes requirements relating to certain biological evidence 17
secured in connection with an investigation or prosecution of a criminal offense. 18
(NRS 176.0912) With limited exception, section 3 of this bill prohibits a law 19
enforcement agency from sharing with or disclosing to any person or entity any 20
biological evidence of a survivor secured in connection with the investigation or 21
prosecution of the alleged sexual assault of the survivor. Section 2 of this bill 22
defines the term “biological evidence” for purposes of the Bill of Rights. Section 4 23
of this bill makes a conforming change to indicate the proper placement of section 24
2 in the Nevada Revised Statutes. Section 5 makes a conforming change related to 25
the definition of “biological evidence” set forth in section 2. 26
Existing law prescribes certain requirements relating to sexual assault forensic 27
medical kits. Among other requirements, existing law requires: (1) a law 28
enforcement agency to submit a sexual assault forensic evidence kit to the 29
appropriate forensic laboratory; and (2) a forensic laboratory to accept and analyze 30
such evidence and upload a DNA profile obtained from such evidence to CODIS or 31
the State DNA Database. (NRS 178A.220, 200.3786) With limited exception, 32
section 3 prohibits a law enforcement agency or forensic laboratory from including 33
the DNA profile of a survivor obtained from the sexual assault forensic evidence kit 34
of the survivor in any database that allows for the storage and exchange of DNA 35
records. 36
Section 7 of this bill requires, to the extent money is available for this purpose, 37
the Central Repository for Nevada Records of Criminal History, the State DNA 38
Database and each forensic laboratory to: (1) conduct an audit of certain biological 39
specimens, DNA profiles and DNA records; and (2) submit the results of the audit 40
to the Joint Interim Standing Committee on Judiciary and the Director of the 41
Legislative Counsel Bureau on or before January 1, 2024. 42
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 178A of NRS is hereby amended by 1
adding thereto the provisions set forth as sections 2 and 3 of this act. 2
Sec. 2. “Biological evidence” has the meaning ascribed to it 3
in NRS 176.0912 and includes, without limitation, a sexual assault 4
forensic evidence kit. 5
Sec. 3. 1. A law enforcement agency or forensic laboratory 6
shall not include the DNA profile of a survivor obtained from the 7
sexual assault forensic evidence kit of the survivor in any database 8
that allows for the storage and exchange of DNA records unless 9
the law enforcement agency or forensic laboratory is authorized to 10
include the DNA profile in CODIS pursuant to 34 U.S.C. § 11
12592(b). 12
2. Except as otherwise provided in subsection 3 and except as 13
otherwise required by state or federal law, a law enforcement 14
agency that has in its possession or custody any biological 15
– 3 –
- *SB321 _R2 *
evidence of a survivor secured in connection with the investigation 1
or prosecution of the alleged sexual assault of the survivor shall 2
not share such evidence with or disclose such evidence to any 3
person or entity, including, without limitation, any other law 4
enforcement agency, except pursuant to: 5
(a) A court order; or 6
(b) A request from another law enforcement agency, if the law 7
enforcement agency determines that such action is necessary to 8
identify or prosecute the person who committed the alleged sexual 9
assault of the survivor. 10
3. The provisions of subsection 2 do not apply if the 11
disclosure is necessary for purposes of satisfying discovery 12
obligations, including, without limitation, any obligation 13
prescribed by the Federal Rules of Criminal Procedure. 14
4. As used in this section: 15
(a) “Any database” includes, without limitation, the State DNA 16
Database, CODIS or any other database that allows for the 17
storage and exchange of DNA records, including, without 18
limitation, any local, state or national database. 19
(b) “DNA record” means a database record stored in any 20
database, that includes the DNA profile of a person and data 21
required to manage the record. 22
Sec. 4. NRS 178A.020 is hereby amended to read as follows: 23
178A.020 As used in this chapter, unless the context otherwise 24
requires, the words and terms defined in NRS 178A.030 to 25
178A.140, inclusive, and section 2 of this act have the meanings 26
ascribed to them in those sections. 27
Sec. 5. NRS 178A.220 is hereby amended to read as follows: 28
178A.220 1. A survivor has the right to prompt genetic 29
marker analysis of a sexual assault forensic evidence kit pursuant to 30
NRS 200.3786. 31
2. A sexual assault forensic evidence kit must be transported to 32
a forensic laboratory and analyzed pursuant to NRS 200.3786, 33
unless the survivor requests in writing at any time before such 34
analysis, for the forensic laboratory to defer analysis of the sexual 35
assault forensic evidence kit. 36
3. Biological evidence [, including, without limitation, a sexual 37
assault forensic evidence kit,] secured in connection with the 38
investigation or prosecution of a criminal case must be preserved 39
and stored in accordance with the provisions of this subsection and 40
NRS 176.0912. A sexual assault forensic evidence kit that is in the 41
custody of an agency of criminal justice must be retained for: 42
(a) If the sexual assault forensic evidence kit is associated with 43
an uncharged or unsolved sexual assault, at least 50 years. 44
– 4 –
- *SB321 _R2 *
(b) If the sexual assault forensic evidence kit is associated with 1
an unreported or anonymous sexual assault, at least 20 years. 2
4. If a survivor has requested to defer analysis pursuant to 3
subsection 2, the survivor may request that the forensic laboratory 4
analyze the sexual assault forensic evidence kit at any later date 5
before the expiration of the retention period pursuant to 6
subsection 3. 7
5. A survivor has the right to the information regarding the 8
timeline of the genetic marker analysis of sexual assault forensic 9
evidence kits pursuant to NRS 200.3786. 10
Sec. 6. NRS 178A.260 is hereby amended to read as follows: 11
178A.260 [Forensic] A law enforcement agency shall not use 12
any biological evidence obtained from [a sexual assault may not be 13
used:] the sexual assault forensic evidence kit of a survivor or any 14
biological evidence secured in connection with the investigation or 15
prosecution of the alleged sexual assault of the survivor: 16
1. To prosecute [a] the survivor for any [: 17
(a) Misdemeanor; or 18
(b) Offense related to a controlled substance.] crime; 19
2. As a basis to search for further evidence of [any unrelated 20
misdemeanor or] any criminal offense [related to a controlled 21
substance] that may have been committed by the survivor [.] ; or 22
3. For any other purpose that is not directly related to the 23
investigation or prosecution of the alleged sexual assault of the 24
survivor. 25
Sec. 7. 1. To the extent money is available for this purpose, 26
the Central Repository, the State DNA Database and each forensic 27
laboratory shall: 28
(a) Conduct an audit of any biological specimen, DNA profile or 29
DNA record stored or maintained in the Central Repository, the 30
State DNA Database or forensic laboratory, as applicable, for the 31
period beginning on January 1, 2021, and ending on December 31, 32
2021. Any such audit must: 33
(1) Include, without limitation, an examination and analysis 34
of compliance with NRS 176.0911 to 176.0919, inclusive; and 35
(2) Identify the number of DNA profiles that should have 36
been collected during the period beginning on January 1, 2021, and 37
ending on December 31, 2021, and were not collected during that 38
period; and 39
(b) Submit the results of the audit to the Joint Interim Standing 40
Committee on Judiciary and the Director of the Legislative Counsel 41
Bureau on or before January 1, 2024. 42
2. As used in this section: 43
(a) “Biological specimen” has the meaning ascribed to it in 44
NRS 176.09112. 45
– 5 –
- *SB321 _R2 *
(b) “Central Repository” means the Central Repository for 1
Nevada Records of Criminal History. 2
(c) “DNA profile” has the meaning ascribed to it in 3
NRS 176.09115. 4
(d) “DNA record” has the meaning ascribed to it in 5
NRS 176.09116. 6
(e) “Forensic laboratory” has the meaning ascribed to it in 7
NRS 176.09117. 8
(f) “State DNA database” means the database established by 9
NRS 176.09121. 10
H