12-12-104. Physical evidence in sex offense or violent offense prosecutions — Retention and disposition — Definitions.

12-12-104. Physical evidence in sex offense or violent offense prosecutions — Retention and disposition — Definitions. (a) In a prosecution for a sex offense or a violent offense, the law enforcement agency shall preserve, subject to a continuous chain of custody, any physical evidence secured in relation to a trial and sufficient official documentation to locate that evidence. (b)(1) After a trial resulting in conviction, the evidence shall be impounded and securely retained by a law enforcement agency. (2) Retention shall be the greater of: (A) Permanent following any conviction for a violent offense; (B) For twenty-five (25) years following any conviction for a sex offense; and (C) For seven (7) years following any conviction for any other felony for which the defendant's genetic profile may be taken by a law enforcement agency and submitted for comparison to the State DNA Data Base for unsolved offenses. (c) After a conviction is entered, the prosecuting attorney or law enforcement agency having custody of the evidence may petition the court with notice to the defendant for entry of an order allowing disposition of the evidence if, after a hearing and a reasonable period of time in which to respond, the court determines by a preponderance of the evidence that: (1) The evidence has no significant value for forensic analysis and must be returned to its rightful owner; or (2) The evidence has no significant value for forensic analysis and is of a size, bulk, or physical character not usually retained by the law enforcement agency and cannot practicably be retained by the agency. (d) The court may order the disposition of the evidence if the defendant is allowed the opportunity to take reasonable measures to remove or preserve portions of the evidence in question for future testing. (e)(1) It is unlawful for any person to purposely fail to comply with the provisions of this section. (2) A person who violates this section is guilty of a Class A misdemeanor. (f) As used in this section: (1) “Law enforcement agency” means any police force or organization whose primary responsibility as established by statute or ordinance is the enforcement of the criminal laws, traffic laws, or highway laws of this state; (2) “Sex offense” means: (A) Rape, § 5-14-103; (B) Sexual indecency with a child, § 5-14-110; (C) Sexual assault in the first degree, § 5-14-124; (D) Sexual assault in the second degree, § 5-14-125; (E) Sexual assault in the third degree, § 5-14-126; (F) Sexual assault in the fourth degree, § 5-14-127; (G) Incest, § 5-26-202; (H) Engaging children in sexually explicit conduct for use in visual or print medium, § 5-27-303; (I) Transportation of minors for prohibited sexual conduct, § 5-27-305; (J) Employing or consenting to use of child in sexual performance, § 5-27-402; (K) Producing, directing, or promoting a sexual performance by a child, § 5-27-403; (L) Computer child pornography, § 5-27-603; (M) Computer exploitation of a child in the first degree, § 5-27-605(a); (N) Promoting prostitution in the first degree, § 5-70-104; (O) Stalking, § 5-71-229; (P) An attempt, solicitation, or conspiracy to commit any of the offenses enumerated in this subdivision (f)(2); (Q) A violation of any former law of this state that is substantially equivalent to any of the offenses enumerated in this subdivision (f)(2); or (R) Sexual extortion, § 5-14-113; and (3) “Violent offense” means: (A) Capital murder, § 5-10-101, murder in the first degree, § 5-10-102, or murder in the second degree, § 5-10-103; (B) Manslaughter, § 5-10-104; (C) Kidnapping, § 5-11-102; (D) False imprisonment in the first degree, § 5-11-103; (E) Permanent detention or restraint, § 5-11-106; (F) Robbery, § 5-12-102; (G) Aggravated robbery, § 5-12-103; (H) Battery in the first degree, § 5-13-201; (I) Battery in the second degree, § 5-13-202; (J) Aggravated assault, § 5-13-204; (K) Terroristic threatening in the first degree, § 5-13-301; (L) Domestic battering in the first degree, § 5-26-303, domestic battering in the second degree, § 5-26-304, and domestic battering in the third degree, § 5-26-305; (M) Aggravated assault on family or household member, § 5-26-306; (N) Engaging in a continuing criminal gang, organization, or enterprise, § 5-74-104; (O) An attempt, solicitation, or conspiracy to commit any of the offenses enumerated in this subdivision (f)(3); (P) A violation of any former law of this state that is substantially equivalent to any of the offenses enumerated in this subdivision (f)(3); or (Q) Aggravated assault upon a law enforcement officer or an employee of a correctional facility, § 5-13-211, if a Class Y felony.