KRS 524.140: Disposal of biological evidence that may be subject to DNA testing --

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 lo cal 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 ga thered 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 adversar ial 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 w as 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 destr oy 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 labor atory 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 biologi cal 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 anothe r 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 sendin g 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 sam ple 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 4 22.285(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.