524.140 Disposal of biological evidence that may be subject to DNA testing --
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/ky/524-140A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Motion to destroy -- Liability for destruction -- Penalty -- Retention of
biological material.
(1)As used in this section:
(a)"Biological evidence" means:
1. The contents of a sexual assault evidence collection kit; or
2. Any item, or representative sample taken from an item, that contains
blood, saliva, sperm, hair, tissue, bones, teeth, or other bodily fluids that
was collected as part of a criminal investigation and that reasonably may
be used to incriminate or exculpate any person from an offense or
delinquent act;
(b)"Defendant" means a person charged with a:
1. Capital offense, Class A felony, Class B felony, or Class C felony; or
2. Class D felony under KRS Chapter 510; and
(c)"Following trial" means after:
1. The first appeal authorized by the Constitution of Kentucky in a criminal
case has been decided; or
2. The time for the first appeal authorized by the Constitution of Kentucky
in a criminal case has lapsed without an appeal having been filed.
(2)No item of biological evidence gathered by law enforcement, prosecutorial, or
defense authorities that may be subject to deoxyribonucleic acid
(DNA)evidence
testing and analysis in order to assist federal, state, and local criminal justice and
law enforcement agencies within and outside the Commonwealth in the
identification, detection, or exclusion of individuals who are subjects of
investigation or prosecution, or to confirm the guilt or innocence of a criminal
defendant, shall be disposed of prior to a criminal trial unless:
(a)The evidence has been in custody not less than fifty
(50)years; or
(b)The evidence has been in custody not less than ten
(10)years; and
1. The prosecution has determined that the defendant will not be tried for
the criminal offense; and
2. The prosecution has made a motion, before the court in which the case
would have been tried, to destroy the evidence.
(3)No item of biological evidence gathered by law enforcement, prosecutorial, or
defense authorities that may be subject to deoxyribonucleic acid
(DNA)evidence
testing and analysis in order to confirm the guilt or innocence of a criminal
defendant shall be disposed of following the trial unless:
(a)The evidence, together with DNA evidence testing and analysis results, has
been presented at the trial, and the defendant has been found guilty, pled
guilty, or entered an Alford plea at the trial;
(b)The evidence was not introduced at the trial, or if introduced at the trial was
not the subject of DNA testing and analysis, and the defendant has been found
guilty, pled guilty, or entered an Alford plea at the trial, and the trial court has
ordered the destruction of the evidence after an adversarial hearing conducted
upon motion of either the prosecution or the defendant;
(c)The trial resulted in the defendant being found not guilty or the charges were
dismissed after jeopardy attached, whether or not the evidence was introduced
at the trial or was subject to DNA testing and analysis or not, and the trial
court ordered the destruction of the evidence after an adversarial hearing
conducted upon motion of either the prosecution or the defendant; or
(d)The trial resulted in the dismissal of charges against the defendant, and the
defendant may be subject to retrial, in which event the evidence shall be
retained until after the retrial, which shall be considered a new trial for the
purposes of this section.
(4)The burden of proof for a motion to destroy biological evidence that may be subject
to DNA testing and analysis shall be upon the party making the motion, and the
court may permit the destruction of the evidence under this section upon good cause
shown favoring its destruction.
(5)It is recognized by the General Assembly that the DNA evidence laboratory testing
and analysis procedure consumes and destroys a portion of the evidence or may
destroy all of the evidence if the sample is small. The consuming and destruction of
evidence during the laboratory analysis process shall not result in liability for its
consumption or destruction if the following conditions are met:
(a)The Department of Kentucky State Police laboratory uses a method of testing
and analysis which preserves as much of the biological material or other
evidence tested and analyzed as is reasonably possible; or
(b)If the Department of Kentucky State Police laboratory knows or reasonably
believes that the entire sample of evidence to be tested and analyzed that the
laboratory, prior to the testing or analysis of the evidence, notifies in writing
the court which ordered the testing and analysis and counsel for all parties:
1. That the entire sample of evidence may be destroyed by the testing and
analysis;
2. The possibility that another laboratory may be able to perform the
testing and analysis in a less destructive manner with at least equal
results;
3. The name of the laboratory capable of performing the testing and
analysis, the costs of testing and analysis, the advantages of sending the
material to that other laboratory, and the amount of biological material
or other evidence which might be saved by alternative testing and
analysis; and
4. The Department of Kentucky State Police laboratory follows the
directive of the court with regard to the testing and analysis; or
(c)If the Department of Kentucky State Police laboratory knows or reasonably
believes that so much of the biological material or evidence may be consumed
or destroyed in the testing and analysis that an insufficient sample will remain
for independent testing and analysis that the laboratory follows the procedure
specified in paragraph
(b)of this subsection.
(6)Destruction of evidence in violation of this section shall be a violation of KRS
524.100.
(7)Subject to KRS 422.285(9), the appropriate governmental entity shall retain any
biological material secured in connection with a criminal case for the period of time
that any person remains incarcerated in connection with that case. The
governmental entity shall have the discretion to determine how the evidence is
retained pursuant to this section, provided that the evidence is retained in a
condition suitable for DNA testing and analysis.