- 82nd Session (2023)
Senate Bill No. 321–Senators Krasner, D. Harris, Seevers Gansert,
Ohrenschall; Flores, Nguyen, Pazina, Scheible, Spearman
and Stone
Joint Sponsors: Assemblymen Thomas, Gorelow, McArthur,
Kasama; Marzola, C.H. Miller, Orentlicher, Peters, Taylor
and Watts
CHAPTER..........
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
grants a survivor certain rights relating to the investigation or prosecution of an
alleged sexual assault perpetrated against the survivor. (Chapter 178A of NRS)
Among other requirements, the Bill of Rights grants a survivor the right to not have
forensic evidence from a sexual assault used: (1) to prosecute the survivor for any
misdemeanor or offense related to a controlled substance; or (2) as a basis to search
for further evidence of any unrelated misdemeanor or any offense related to a
controlled substance that may have been committed by the survivor. (NRS
178A.260) Section 6 of this bill expands this right by prohibiting a law
enforcement agency from using any biological evidence obtained from the sexual
assault forensic evidence kit of a survivor or any biological evidence secured in
connection with the investigation or prosecution of the alleged sexual assault of the
survivor: (1) to prosecute the survivor for any crime; (2) as a basis to search for
further evidence of any criminal offense that may have been committed by the
survivor; or (3) for any other purpose that is not directly related to the investigation
or prosecution of the alleged sexual assault of the survivor.
Existing law prescribes requirements relating to certain biological evidence
secured in connection with an investigation or prosecution of a criminal offense.
(NRS 176.0912) With limited exception, section 3 of this bill prohibits a law
enforcement agency from sharing with or disclosing to any person or entity any
biological evidence of a survivor secured in connection with the investigation or
prosecution of the alleged sexual assault of the survivor. Section 2 of this bill
defines the term “biological evidence” for purposes of the Bill of Rights. Section 4
of this bill makes a conforming change to indicate the proper placement of section
2 in the Nevada Revised Statutes. Section 5 makes a conforming change related to
the definition of “biological evidence” set forth in section 2.
Existing law prescribes certain requirements relating to sexual assault forensic
medical kits. Among other requirements, existing law requires: (1) a law
enforcement agency to submit a sexual assault forensic evidence kit to the
appropriate forensic laboratory; and (2) a forensic laboratory to accept and analyze
– 2 –
- 82nd Session (2023)
such evidence and upload a DNA profile obtained from such evidence to CODIS or
the State DNA Database. (NRS 178A.220, 200.3786) With limited exception,
section 3 prohibits a law enforcement agency or forensic laboratory from including
the DNA profile of a survivor obtained from the sexual assault forensic evidence kit
of the survivor in any database that allows for the storage and exchange of DNA
records.
Section 7 of this bill requires, to the extent money is available for this purpose,
the Central Repository for Nevada Records of Criminal History, the State DNA
Database and each forensic laboratory to: (1) conduct an audit of certain biological
specimens, DNA profiles and DNA records; and (2) submit the results of the audit
to the Joint Interim Standing Committee on Judiciary and the Director of the
Legislative Counsel Bureau on or before January 1, 2024.
EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.
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
adding thereto the provisions set forth as sections 2 and 3 of this act.
Sec. 2. “Biological evidence” has the meaning ascribed to it
in NRS 176.0912 and includes, without limitation, a sexual assault
forensic evidence kit.
Sec. 3. 1. A law enforcement agency or forensic laboratory
shall not include the DNA profile of a survivor obtained from the
sexual assault forensic evidence kit of the survivor in any database
that allows for the storage and exchange of DNA records unless
the law enforcement agency or forensic laboratory is authorized to
include the DNA profile in CODIS pursuant to 34 U.S.C. §
12592(b).
2. Except as otherwise provided in subsection 3 and except as
otherwise required by state or federal law, a law enforcement
agency that has in its possession or custody any biological
evidence of a survivor secured in connection with the investigation
or prosecution of the alleged sexual assault of the survivor shall
not share such evidence with or disclose such evidence to any
person or entity, including, without limitation, any other law
enforcement agency, except pursuant to:
(a) A court order; or
(b) A request from another law enforcement agency, if the law
enforcement agency determines that such action is necessary to
identify or prosecute the person who committed the alleged sexual
assault of the survivor.
3. The provisions of subsection 2 do not apply if the
disclosure is necessary for purposes of satisfying discovery
– 3 –
- 82nd Session (2023)
obligations, including, without limitation, any obligation
prescribed by the Federal Rules of Criminal Procedure.
4. As used in this section:
(a) “Any database” includes, without limitation, the State DNA
Database, CODIS or any other database that allows for the
storage and exchange of DNA records, including, without
limitation, any local, state or national database.
(b) “DNA record” means a database record stored in any
database, that includes the DNA profile of a person and data
required to manage the record.
Sec. 4. NRS 178A.020 is hereby amended to read as follows:
178A.020 As used in this chapter, unless the context otherwise
requires, the words and terms defined in NRS 178A.030 to
178A.140, inclusive, and section 2 of this act have the meanings
ascribed to them in those sections.
Sec. 5. NRS 178A.220 is hereby amended to read as follows:
178A.220 1. A survivor has the right to prompt genetic
marker analysis of a sexual assault forensic evidence kit pursuant to
NRS 200.3786.
2. A sexual assault forensic evidence kit must be transported to
a forensic laboratory and analyzed pursuant to NRS 200.3786,
unless the survivor requests in writing at any time before such
analysis, for the forensic laboratory to defer analysis of the sexual
assault forensic evidence kit.
3. Biological evidence [, including, without limitation, a sexual
assault forensic evidence kit,] secured in connection with the
investigation or prosecution of a criminal case must be preserved
and stored in accordance with the provisions of this subsection and
NRS 176.0912. A sexual assault forensic evidence kit that is in the
custody of an agency of criminal justice must be retained for:
(a) If the sexual assault forensic evidence kit is associated with
an uncharged or unsolved sexual assault, at least 50 years.
(b) If the sexual assault forensic evidence kit is associated with
an unreported or anonymous sexual assault, at least 20 years.
4. If a survivor has requested to defer analysis pursuant to
subsection 2, the survivor may request that the forensic laboratory
analyze the sexual assault forensic evidence kit at any later date
before the expiration of the retention period pursuant to
subsection 3.
5. A survivor has the right to the information regarding the
timeline of the genetic marker analysis of sexual assault forensic
evidence kits pursuant to NRS 200.3786.
– 4 –
- 82nd Session (2023)
Sec. 6. NRS 178A.260 is hereby amended to read as follows:
178A.260 [Forensic] A law enforcement agency shall not use
any biological evidence obtained from [a sexual assault may not be
used:] the sexual assault forensic evidence kit of a survivor or any
biological evidence secured in connection with the investigation or
prosecution of the alleged sexual assault of the survivor:
1. To prosecute [a] the survivor for any [:
(a) Misdemeanor; or
(b) Offense related to a controlled substance.] crime;
2. As a basis to search for further evidence of [any unrelated
misdemeanor or] any criminal offense [related to a controlled
substance] that may have been committed by the survivor [.] ; or
3. For any other purpose that is not directly related to the
investigation or prosecution of the alleged sexual assault of the
survivor.
Sec. 7. 1. To the extent money is available for this purpose,
the Central Repository, the State DNA Database and each forensic
laboratory shall:
(a) Conduct an audit of any biological specimen, DNA profile or
DNA record stored or maintained in the Central Repository, the
State DNA Database or forensic laboratory, as applicable, for the
period beginning on January 1, 2021, and ending on December 31,
2021. Any such audit must:
(1) Include, without limitation, an examination and analysis
of compliance with NRS 176.0911 to 176.0919, inclusive; and
(2) Identify the number of DNA profiles that should have
been collected during the period beginning on January 1, 2021, and
ending on December 31, 2021, and were not collected during that
period; and
(b) Submit the results of the audit to the Joint Interim Standing
Committee on Judiciary and the Director of the Legislative Counsel
Bureau on or before January 1, 2024.
2. As used in this section:
(a) “Biological specimen” has the meaning ascribed to it in
NRS 176.09112.
(b) “Central Repository” means the Central Repository for
Nevada Records of Criminal History.
(c) “DNA profile” has the meaning ascribed to it in
NRS 176.09115.
(d) “DNA record” has the meaning ascribed to it in
NRS 176.09116.
(e) “Forensic laboratory” has the meaning ascribed to it in
NRS 176.09117.
– 5 –
- 82nd Session (2023)
(f) “State DNA database” means the database established by
NRS 176.09121.
20 ~~~~~ 23