K.S.A. Chapter 21 Article 25

IDENTIFICATION AND DETECTION OF CRIMES AND CRIMINALS

Current through End of 2010 Legislative Session

21-2501 Fingerprinting of suspects; disposition of fingerprints.

21-2501a Maintenance of records of felony and misdemeanor offenses by law enforcement agencies; reports to bureau of investigation; form.

21-2502 University of Kansas and state departments to assist law enforcement officers and coroners.

21-2503 Fingerprint records admissible in evidence.

21-2504 Attorney general may call upon designated officers for information; forms.

21-2505 Same; nonperformance of duties; penalty.

21-2506 Same; construction of act.

21-2511 Collection of specimens of fingerprints, blood and saliva from certain persons; Kansas bureau of investigation, powers and duties.

21-2512 Forensic DNA testing; limits thereof.

21-2501. Fingerprinting of suspects; disposition of fingerprints.

(a) It is hereby made the duty of every sheriff, police department or countywide law enforcement agency in the state, immediately to cause two sets of fingerprint impressions and one set of palm print impressions to be made of a person who is arrested if the person:

(1) Is wanted for the commission of a felony. On or after July 1, 1993, fingerprints and palm prints shall be taken if the person is wanted for the commission of a felony or a class A or B misdemeanor or assault as defined in K.S.A. 21-3408 and amendments thereto or a violation of a county resolution which would be the equivalent of a class A or B misdemeanor or assault as defined in K.S.A. 21-3408 and amendments thereto under state law;

(2) is believed to be a fugitive from justice;

(3) may be in the possession at the time of arrest of any goods or property reasonably believed to have been stolen by the person;

(4) is in possession of firearms or other concealed weapons, burglary tools, high explosives or other appliances believed to be used solely for criminal purposes;

(5) is wanted for any offense which involves sexual conduct prohibited by law or for violation of sections 1 through 17 [of 2009 HB 2236]; or

(6) is suspected of being or known to be a habitual criminal or violator of the intoxicating liquor law.

(b) The court shall ensure, upon the offender's first appearance, or in any event before final disposition of a felony or an A or B misdemeanor or a violation of a county resolution which prohibits an act which is prohibited by a class A or B misdemeanor, that the offender has been processed, fingerprinted and palm printed.

(c) Impressions taken pursuant to this section shall be made on the forms provided by the department of justice of the United States or the Kansas bureau of investigation. The sheriff, police department or countywide law enforcement agency shall cause the impressions to be forwarded to the Kansas bureau of investigation at Topeka, Kansas, which shall forward one set of the impressions to the federal bureau of investigation, department of justice, at Washington, D.C. A comprehensive description of the person arrested and such other data and information as to the identification of such person as the department of justice and

bureau of investigation require shall accompany the impressions.

(d) A sheriff, police department or countywide law enforcement agency may take and retain for its own use copies of such impressions of a person specified in subsection (a), together with a comprehensive description and such other data and information as necessary to properly identify such person.

(e) Except as provided in subsection (a)(1), this section shall not be construed to include violators of any county resolution or municipal ordinance.

History: L. 1931, ch. 178, § 1; L. 1959, ch. 165, § 1; L. 1969, ch. 183, § 1; L. 1979, ch. 90, § 1; L. 1984, ch. 115, § 4; L. 1992, ch. 239, § 32; L. 1993, ch. 291, § 15; L. 1994, ch. 291, § 20; L. 2007, ch. 145, § 1; L. 2009, ch. 32, § 23, July 1.

21-2501a. Maintenance of records of felony and misdemeanor offenses by law enforcement agencies; reports to bureau of investigation; form.

(a) All law enforcement agencies having responsibility for law enforcement in any political subdivision of this state, on forms approved by the attorney general, shall maintain a permanent record of all felony and misdemeanor offenses reported or known to have been committed within their respective jurisdictions.

(b) All law enforcement agencies having the responsibility of maintaining a permanent record of offenses shall file with the Kansas bureau of investigation, on a form approved by the attorney general, a report on each offense for which a permanent record is required within 72 hours after such offense is reported or known to have been committed.

(c) It is hereby made the duty of every sheriff, police department or countywide law enforcement agency in the state to report within 30 days, on forms approved by the attorney general, any methamphetamine laboratory seizures or dump sites and any theft or attempted theft of anhydrous ammonia that occurs in such agency’s jurisdiction.

History: L. 1969, ch. 183, § 2; L. 1979, ch. 90, § 2; L. 1992, ch. 239, § 33; L. 1993, ch. 291, § 16; L. 1994, ch. 291, § 21; L. 2005, ch. 153, § 9; June 1.

21-2502. University of Kansas and state departments to assist law enforcement officers and coroners.

It shall be the duty of the university of Kansas, the secretary of health and environment, and all other state departments and institutions, free of charge or reward, to cooperate with the law-enforcement officers of the state, and with the coroners, and to render to them such service and assistance relative to microanalysis, handwriting, toxicology, chemistry, photography, medicine, ballistics and all other sciences and matters relating to or that would aid in controlling crime, disease and the detection, apprehension, identification and prosecution of criminals.

History: L. 1931, ch. 178, § 2; L. 1963, ch. 166, § 11; L. 1965, ch. 164, § 16; L. 1975, ch. 462, § 28; July 1.

21-2503. Fingerprint records admissible in evidence.

A photostatic copy of the fingerprint impression of any person convicted of a felony or misdemeanor that has been filed and kept according to law, and duly certified as a true and correct copy by the director or other person having charge of such records, shall be admissible in evidence and received in evidence in any subsequent prosecution of that person for the purpose of identification where otherwise competent.

History: L. 1931, ch. 178, § 3; March 16.

21-2504. Attorney general may call upon designated officers for information; forms.

(a) For the purpose of controlling crime and obtaining reliable statistics about crime and criminals, the attorney general may call upon and obtain from the clerks of district courts, sheriffs, police departments and county attorneys all information that said attorney general may deem necessary in ascertaining the true condition of the crime situation; and it shall be the duty of the above-mentioned officers to furnish the information so requested by the attorney general.

(b) The attorney general shall provide, upon request, forms for fingerprint impressions, for the permanent record of offenses, and for the reports of offenses required by K.S.A. 21-2501 and 21-2501a.

History: L. 1931, ch. 178, § 4; L. 1969, ch. 183, § 3; L. 1973, ch. 134, § 25; L. 1976, ch. 156, § 1; Jan. 10, 1977.

21-2505. Same; nonperformance of duties; penalty.

Neglect or refusal of any officer to furnish the information or perform any other act or duty required of the officer under K.S.A. 21-2501, 21-2501a, 21-2502, 21-2503 or 21-2504, and amendments thereto, is a class A nonperson misdemeanor and, upon conviction thereof, the officer shall forfeit the officer's office.

History: L. 1931, ch. 178, § 5; L. 1995, ch. 184, § 1; Apr. 27.

21-2506. Same; construction of act.

It is hereby declared that this act is for the public safety, peace and welfare of the state, is remedial in nature, shall be construed liberally, and in case any part thereof shall be declared unconstitutional it shall not in any way affect any other part hereof.

History: L. 1931, ch. 178, § 6; March 16.

21-2511. Collection of specimens of fingerprints, blood and saliva from certain persons; Kansas bureau of investigation, powers and duties.

(a) Any person convicted as an adult or adjudicated as a juvenile offender because of the commission of any felony; a violation of subsection (a)(1) of K.S.A. 21-3505; a violation of K.S.A. 21-3508; a violation of K.S.A. 21-4310; a violation of K.S.A. 21-3424, and amendments thereto when the victim is less than 18 years of age; a violation of K.S.A. 21-3507, and amendments thereto, when one of the parties involved is less than 18 years of age; a violation of subsection (b)(1) of K.S.A. 21-3513, and amendments thereto, when one of the parties involved is less than 18 years of age; a violation of K.S.A. 21-3515, and amendments thereto, when one of the parties involved is less than 18 years of age; or a violation of K.S.A. 21-3517, and amendments thereto; including an attempt, conspiracy or criminal solicitation, as defined in K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of any such offenses provided in this subsection regardless of the sentence imposed, shall be required to submit specimens of blood or an oral or other biological sample authorized by the Kansas bureau of investigation to the Kansas bureau of investigation in accordance with the provisions of this act, if such person is:

(1) Convicted as an adult or adjudicated as a juvenile offender because of the commission of a crime specified in subsection (a) on or after the effective date of this act;

(2) ordered institutionalized as a result of being convicted as an adult or adjudicated as a juvenile offender because of the commission of a crime specified in subsection (a) on or after the effective date of this act; or

(3) convicted as an adult or adjudicated as a juvenile offender because of the commission of a crime specified in this subsection before the effective date of this act and is presently confined as a result of such conviction or adjudication in any state correctional facility or county jail or is presently serving a sentence under K.S.A. 21-4603, 21-4603d, 22-3717 or K.S.A. 2006 Supp. 38-2361, and amendments thereto.

(b) Notwithstanding any other provision of law, the Kansas bureau of investigation is authorized to obtain fingerprints and other identifiers for all persons, whether juveniles or adults, covered by this act.

(c) Any person required by paragraphs (a)(1) and (a)(2) to provide such specimen or sample shall be ordered by the court to have such specimen or sample collected within 10 days after sentencing or adjudication:

(1) If placed directly on probation, that person must provide such specimen or sample, at a collection site designated by the Kansas bureau of investigation. Collection of specimens shall be conducted by qualified volunteers, contractual personnel or employees designated by the Kansas bureau of investigation. Failure to cooperate with the collection of the specimens and any deliberate act by that person intended to impede, delay or stop the collection of the specimens shall be punishable as contempt of court and constitute grounds to revoke probation;

(2) if sentenced to the secretary of corrections, the such specimen or sample will be obtained as soon as practical upon arrival at the correctional facility; or

(3) if a juvenile offender is placed in the custody of the commissioner of juvenile justice, in a youth residential facility or in a juvenile correctional facility, such specimen or sample will be obtained as soon as practical upon arrival.

(d) Any person required by paragraph (a)(3) to provide such specimen or sample shall be required to provide such samples prior to final discharge or conditional release at a collection site designated by the Kansas bureau of investigation. Collection of specimens shall be conducted by qualified volunteers, contractual personnel or employees designated by the Kansas bureau of investigation.

(e) (1) On and after January 1, 2007 through June 30, 2008, any adult arrested or charged or juvenile placed in custody for or charged with the commission or attempted commission of any person felony or drug severity level 1 or 2 felony shall be required to submit such specimen or sample at the same time such person is fingerprinted pursuant to the booking procedure.

(2) On and after July 1, 2008, except as provided further, any adult arrested or charged or juvenile placed in custody for or charged with the commission or attempted commission of any felony; a violation of subsection (a)(1) of K.S.A. 21-3505; a violation of K.S.A. 21-3508; a violation of K.S.A. 21-4310; a violation of K.S.A. 21-3424, and amendments thereto, when the victim is less than 18 years of age; a violation of K.S.A. 21-3507, and amendments thereto, when one of the parties involved is less than 18 years of age; a violation of subsection (b)(1) of K.S.A. 21-3513, and amendments thereto, when one of the parties involved is less than 18 years of age; a violation of K.S.A. 21-3515, and amendments thereto, when one of the parties involved is less than 18 years of age; or a violation of K.S.A. 21-3517, and amendments thereto; shall be required to submit such specimen or sample at the same time such person is finger-printed pursuant to the booking procedure.

(3) Prior to taking such samples, the arresting, charging or custodial law enforcement agency shall search the Kansas criminal history files through the Kansas criminal justice information system to determine if such person’s sample is currently on file with the Kansas bureau of investigation. In the event that it cannot reasonably be established that a DNA sample for such person is on file at the Kansas bureau of investigation, the arresting, charging or custodial law enforcement agency shall cause a sample to be collected. If such person’s sample is on file with the Kansas bureau of investigation, the law enforcement agency is not required to take the sample.

(4) If a court later determines that there was not probable cause for the arrest, charge or placement in custody, or the charges are otherwise dismissed, and the case is not appealed, the Kansas bureau of investigation, upon petition by such person, shall expunge both the DNA sample and the profile record of such person.

(5) If a conviction against a person, who is required to submit such specimen or sample, is expunged or a verdict of acquittal with regard to such person is returned, the Kansas bureau of investigation shall upon petition by such person, expunge both the DNA sample and the profile record of such person.

(f) All persons required to register as offenders pursuant to K.S.A. 22-4901 et seq., and amendments thereto, shall be required to submit specimens of blood or an oral or other biological sample authorized by the Kansas bureau of investigation to the Kansas bureau of investigation in accordance with the provisions of this act.

(g) The Kansas bureau of investigation shall provide all specimen vials, mailing tubes, labels and instructions necessary for the collection of blood, oral or other biological samples. The collection of samples shall be performed in a medically approved manner. No person authorized by this section to withdraw blood, and no person assisting in the collection of these samples shall be liable in any civil or criminal action when the act is performed in a reasonable manner according to generally accepted medical practices. The withdrawal of blood for purposes of this act may be performed only by: (1) A person licensed to practice medicine and surgery or a person acting under the supervision of any such licensed person; (2) a registered nurse or a licensed practical nurse; or (3) any qualified medical technician including, but not limited to, an emergency medical technician-intermediate, mobile intensive care technician, advanced emergency medical technician or a paramedic, as those terms are defined in K.S.A. 65-6112, and amendments thereto, or a phlebotomist. The samples shall thereafter be forwarded to the Kansas bureau of investigation. The bureau shall analyze the samples to the extent allowed by funding available for this purpose.

(h) The DNA (deoxyribonucleic acid) records and DNA samples shall be maintained by the Kansas bureau of investigation. The Kansas bureau of investigation shall establish, implement and maintain a statewide automated DNA databank and DNA database capable of, but not limited to, searching, matching and storing DNA records. The DNA database as established by this act shall be compatible with the procedures specified by the federal bureau of investigation’s combined DNA index system (CODIS). The Kansas bureau of investigation shall participate in the CODIS program by sharing data and utilizing compatible test procedures, laboratory equipment, supplies and computer software.

(i) The DNA records obtained pursuant to this act shall be confidential and shall be released only to authorized criminal justice agencies. The DNA records shall be used only for law enforcement identification purposes or to assist in the recovery or identification of human remains from disasters or for other humanitarian identification purposes, including identification of missing persons.

(j) (1) The Kansas bureau of investigation shall be the state central repository for all DNA records and DNA samples obtained pursuant to this act. The Kansas Bureau of investigation shall promulgate rules and regulations for:

(A) The form and manner of the collection and maintenance of DNA samples and;

(B) a procedure which allows the defendant to petition to expunge and destroy the DNA samples and profile record in the event of a dismissal of charges expungement, or acquittal at trial; and

(2) These rules and regulations also shall require compliance with national quality assurance standards to ensure that the DNA records satisfy standards of acceptance of such records into the national DNA identification index.

(3) The provisions of the Kansas administrative procedure act shall apply to all actions taken under the rules and regulations so promulgated.

(k) The Kansas bureau of investigation is authorized to contract with third parties for the purposes of implementing this section. Any other party contracting to carry out the functions of this section shall be subject to the same restrictions and requirements of this section, insofar as applicable, as the bureau, as well as any additional restrictions imposed by the bureau.

(l) In the event that a person’s DNA sample is lost or is not adequate for any reason, the person shall provide another sample for analysis.

(m) Any person who is subject to the requirements of this section, and who, after receiving notification of the requirement to provide a DNA specimen, knowingly refuses to provide such DNA specimen, shall be guilty of a class A nonperson misdemeanor.

History: L. 1991, ch. 92, § 1; L. 1992, ch. 143, § 1; L. 1995, ch. 218, § 1; L. 1996, ch. 224, § 1; L. 1997, ch. 156, § 36; L. 1999, ch. 164, § 3; L. 2002, ch. 128, § 1; L. 2004, ch. 11, § 1; L. 2006, ch. 171, § 2; L. 2006, ch. 169, § 93; L. 2007, ch. 145, § 2; L. 2010, ch. 119, § 15; January 15, 2011.

21-2512. Forensic DNA testing; limits thereof.

(a) Notwithstanding any other provision of law, a person in state custody, at any time after conviction for murder as defined by K.S.A. 21-3401, and amendments thereto, or for rape as defined by K.S.A. 21-3502, and amendments thereto, may petition the court that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) of any biological material that:

(1) Is related to the investigation or prosecution that resulted in the conviction;

(2) is in the actual or constructive possession of the state; and

(3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.

(b) (1) The court shall notify the prosecuting attorney of a petition made under subsection (a) and shall afford the prosecuting attorney an opportunity to respond.

(2) Upon receiving notice of a petition made under subsection (a), the prosecuting attorney shall take such steps as are necessary to ensure that any remaining biological material that was secured in connection with the case is preserved pending the completion of proceedings under this section.

(c) The court shall order DNA testing pursuant to a petition made under subsection (a) upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully convicted or sentenced.

(d) The cost of DNA testing ordered under subsection (c) shall be borne by the state or the petitioner, as the court may order in the interests of justice, if it is shown that the petitioner is not indigent and possesses the means to pay.

(e) The court may at any time appoint counsel for an indigent applicant under this section.

(f) (1) If the results of DNA testing conducted under this section are unfavorable to the petitioner, the court:

(A) Shall dismiss the petition; and

(B) in the case of a petitioner who is not indigent, may assess the petitioner for the cost of such testing.

(2) If the results of DNA testing conducted under this section are favorable to the petitioner, the court shall:

(A) order a hearing, notwithstanding any provision of law that would bar such a hearing; and

(B) enter any order that serves the interests of justice, including, but not limited to, an order:

(i) Vacating and setting aside the judgment;

(ii) discharging the petitioner if the petitioner is in custody;

(iii) resentencing the petitioner; or

(iv) granting a new trial.

(3) If the results of DNA testing conducted under this section are inconclusive, the court may order a hearing to determine whether there is a substantial question of innocence. If the petitioner proves by a preponderance of the evidence that there is a substantial question of innocence, the court shall proceed as provided in subsection (f)(2).

(g) Nothing in this section shall be construed to limit the circumstances under which a person may obtain DNA testing or other postconviction relief under any other provision of law.

History: L. 2001, ch. 208, § 4 (HB 2176); July 1.