Kyra Hoffner

This Act requires the State to preserve all biological evidence in its custody that is secured in relation to an investigation or prosecution of a crime, for the period of time that the crime remains unsolved or the period of time that a person convicted of the crime remains in custody, regardless of whether the person pleaded guilty. “Biological evidence” in this context includes any item that may contain identifiable biological material that was collected as part of a criminal investigation or that may reasonably be used to incriminate or exculpate a person. 

The State may destroy evidence that may contain biological material before the expiration of those time periods if all of the following are true: (1) more than 5 years have elapsed since the criminal conviction became final and all appeals are exhausted; (2) the evidence is not in relation to an investigation or prosecution of a Class A to Class E felony; (3) no other provision of federal or state law requires the State to preserve the evidence; (4) the State sends certified delivery of written notice of its intent to destroy the evidence to certain specified recipients, including any person who remains in custody as a result of the criminal conviction, delinquency adjudication, or commitment related to the evidence; and (5) no person who has received such notice, within 180 days of receiving the notice, files a motion for testing of evidence under § 4504 of Title 11 of the Delaware Code or submits a written request for retention of the evidence. In addition, the State is not required to preserve physical evidence that is of a size, bulk, or physical character that makes retention impracticable, but in that case, the State must remove and preserve portions of the evidence that may contain biological evidence related to the offense. 

If the State is called upon to produce biological evidence that cannot be located and whose preservation was required under the Act, then the court must hold a hearing to determine whether the failure to produce evidence was the result of intentional and willful destruction. If so, the court then must order a postconviction hearing, at which the court will infer that the results of the postconviction DNA testing would have been favorable to the petitioner, and impose other appropriate sanctions and order appropriate remedies. 

In addition, the Act requires the Delaware Police Accreditation Commission and Division of Forensic Science to study, promulgate, and implement procedures that effectuate the legislative intent of the Act regarding the proper preservation of biological evidence. 

The Act takes effect 30 days after its enactment into law.