2013 ORS § 181.085¹
Authority over blood and buccal samples and analyses
  • rules
  • disclosure
  • inspection by subject person
  • destruction of sample

(1) The Department of State Police is authorized to:

(a) Store blood and buccal samples received under authority of this section, ORS 137.076 (Blood or buccal sample and thumbprint of certain convicted defendants required), 161.325 (Entry of judgment of guilty except for insanity) and 419C.473 (Authority to order blood or buccal samples) (1) and section 2, chapter 852, Oregon Laws 2001, and other physical evidence obtained from analysis of such samples;

(b) Analyze such samples for the purpose of establishing the genetic profile of the donor or otherwise determining the identity of persons or contract with other qualified public or private laboratories to conduct that analysis;

(c) Maintain a criminal identification database containing information derived from blood and buccal analyses;

(d) Utilize such samples to create statistical population frequency databases, provided that genetic profiles or other such information in a population frequency database shall not be identified with specific individuals; and

(e) Adopt rules establishing procedures for obtaining, transmitting and analyzing blood and buccal samples and for storing and destroying blood and buccal samples and other physical evidence and criminal identification information obtained from such analysis. Procedures for blood and buccal analyses may include all techniques which the department determines are accurate and reliable in establishing identity, including but not limited to, analysis of DNA (deoxyribonucleic acid), antigen antibodies, polymorphic enzymes or polymorphic proteins.

(2) If the department is unable to analyze all samples due to lack of funds, the department shall analyze samples in the following order:

(a) The department shall first analyze samples from persons convicted of:

(A) Rape, sodomy, unlawful sexual penetration, sexual abuse, public indecency, incest or using a child in a display of sexually explicit conduct, as those offenses are defined in ORS 163.355 (Rape in the third degree) to 163.427 (Sexual abuse in the first degree), 163.465 (Public indecency) (1)(c), 163.525 (Incest) and 163.670 (Using child in display of sexually explicit conduct);

(B) Burglary in the second degree, as defined in ORS 164.215 (Burglary in the second degree);

(C) Promoting or compelling prostitution, as defined in ORS 167.012 (Promoting prostitution) and 167.017 (Compelling prostitution);

(D) Burglary in the first degree, as defined in ORS 164.225 (Burglary in the first degree);

(E) Assault in the first, second or third degree, as defined in ORS 163.165 (Assault in the third degree), 163.175 (Assault in the second degree) and 163.185 (Assault in the first degree);

(F) Kidnapping in the first or second degree, as defined in ORS 163.225 (Kidnapping in the second degree) and 163.235 (Kidnapping in the first degree);

(G) Stalking, as defined in ORS 163.732 (Stalking);

(H) Robbery in the first, second or third degree, as defined in ORS 164.395 (Robbery in the third degree), 164.405 (Robbery in the second degree) and 164.415 (Robbery in the first degree);

(I) Manslaughter in the first or second degree, as defined in ORS 163.118 (Manslaughter in the first degree) and 163.125 (Manslaughter in the second degree);

(J) Criminally negligent homicide, as defined in ORS 163.145 (Criminally negligent homicide);

(K) Aggravated vehicular homicide, as defined in ORS 163.149 (Aggravated vehicular homicide);

(L) Conspiracy or attempt to commit any felony listed in subparagraphs (A) to (J) of this paragraph; or

(M) Murder, aggravated murder or an attempt to commit murder or aggravated murder.

(b) After analyzing samples from persons described in paragraph (a) of this subsection, the department shall analyze samples from persons convicted of a felony under ORS 475.752 (Prohibited acts generally), 475.806 (Unlawful manufacture of hydrocodone) to 475.894 (Unlawful possession of methamphetamine), 475.904 (Unlawful manufacture or delivery of controlled substance within 1,000 feet of school), 475.906 (Penalties for unlawful delivery to minors) or 475.914 (Prohibited acts for registrants).

(c) After analyzing samples from persons described in paragraphs (a) and (b) of this subsection, the department shall analyze samples from persons convicted of any other felony.

(3) Notwithstanding subsection (2) of this section, the department may analyze a sample from a lower priority before all samples in higher priorities are analyzed if required in a particular case for law enforcement purposes.

(4) The department may not transfer or disclose any sample, physical evidence or criminal identification information obtained, stored or maintained under authority of this section, ORS 137.076 (Blood or buccal sample and thumbprint of certain convicted defendants required), 161.325 (Entry of judgment of guilty except for insanity) or 419C.473 (Authority to order blood or buccal samples) (1) except:

(a) To a law enforcement agency as defined in ORS 181.010 (Definitions for ORS 181.010 to 181.560 and 181.715 to 181.730), a district attorney or the Criminal Justice Division of the Department of Justice for the purpose of establishing the identity of a person in the course of a criminal investigation or proceeding;

(b) To a party in a criminal prosecution or juvenile proceeding pursuant to ORS 419C.005 (Jurisdiction) if discovery or disclosure is required by a separate statutory or constitutional provision; or

(c) To a court or grand jury in response to a lawful subpoena or court order when the evidence is not otherwise privileged and is necessary for criminal justice purposes.

(5) The department may not transfer or disclose any sample, physical evidence or criminal identification information under subsection (4) of this section unless the public agency or person receiving the sample, physical evidence or criminal identification information agrees to destroy the sample, physical evidence or criminal identification information if notified by the department that a court has reversed the conviction, judgment or order that created the obligation to provide the blood or buccal sample.

(6) Any public agency that receives a sample, physical evidence or criminal identification information under authority of subsection (4) of this section may not disclose it except as provided in subsection (4) of this section.

(7) Notwithstanding subsections (4) and (6) of this section, any person who is the subject of a record within a criminal identification database maintained under the authority of this section may, upon request, inspect that information at a time and location designated by the department. The department may deny inspection if it determines that there is a reasonable likelihood that such inspection would prejudice a pending criminal investigation. In any case, the department is not required to allow the person or anyone acting on the persons behalf to test any blood or buccal sample or other physical evidence. The department shall adopt procedures governing the inspection of records and samples and challenges to the accuracy of records. The procedures shall accommodate the need to preserve the materials from contamination and destruction.

(8)(a) Whenever a court reverses the conviction, judgment or order that created an obligation to provide a blood or buccal sample under ORS 137.076 (Blood or buccal sample and thumbprint of certain convicted defendants required) (2), 161.325 (Entry of judgment of guilty except for insanity) or 419C.473 (Authority to order blood or buccal samples) (1), the person who provided the sample may request destruction of the sample and any criminal identification record created in connection with that sample.

(b) Upon receipt of a written request for destruction pursuant to this section and a certified copy of the court order reversing the conviction, judgment or order, the department shall destroy any sample received from the person, any physical evidence obtained from that sample and any criminal identification records pertaining to the person, unless the department determines that the person has otherwise become obligated to submit a blood or buccal sample as a result of a separate conviction, juvenile adjudication or finding of guilty except for insanity for an offense listed in ORS 137.076 (Blood or buccal sample and thumbprint of certain convicted defendants required) (1). When the department destroys a sample, physical evidence or criminal identification record under this paragraph, the department shall notify any public agency or person to whom the sample, physical evidence or criminal identification information was transferred or disclosed under subsection (4) of this section of the reversal of the conviction, judgment or order.

(c) The department is not required to destroy an item of physical evidence obtained from a blood or buccal sample if evidence relating to another person subject to the provisions of ORS 137.076 (Blood or buccal sample and thumbprint of certain convicted defendants required), 161.325 (Entry of judgment of guilty except for insanity), 419A.260 (Expunction) and 419C.473 (Authority to order blood or buccal samples) (1) and this section would thereby be destroyed. Notwithstanding this subsection, no sample, physical evidence or criminal identification record is affected by an order to set aside a conviction under ORS 137.225 (Order setting aside conviction or record of arrest).

(9) As used in this section, convicted includes a juvenile court finding of jurisdiction based on ORS 419C.005 (Jurisdiction). [1991 c.669 §4; 1993 c.33 §319; 1993 c.469 §4; 1999 c.97 §3; 2001 c.852 §3; 2005 c.708 §51; 2007 c.867 §7]

Note: 181.085 (Authority over blood and buccal samples and analyses) was added to and made a part of ORS chapter 181 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.