{"data":{"id":"us-ky/krs-524.140","jurisdiction":"us-ky","citation":"KRS 524.140","heading":"Disposal of biological evidence that may be subject to DNA testing --","body":"Motion to destroy -- Liability for destruction -- Penalty -- Retention of\nbiological material.\n(1) As used in this section:\n(a) \"Biological evidence\" means:\n1. The contents of a sexual assault evidence collection kit; or\n2. Any item, or representative sample taken from an item, that contains\nblood, saliva, sperm, hair, tissue, bones, teeth, or other bodily fluids that\nwas collected as part of a criminal investigation and that reasonably may\nbe used to incriminate or exculpate any person from an offense or\ndelinquent act;\n(b) \"Defendant\" means a person charged with a:\n1. Capital offense, Class A felony, Class B felony, or Class C felony; or\n2. Class D felony under KRS Chapter 510; and\n(c) \"Following trial\" means after:\n1. The first appeal authorized by the Constitution of Kentucky in a criminal\ncase has been decided; or\n2. The time for the first appeal authorized by the Constitution of Kentucky\nin a criminal case has lapsed without an appeal having been filed.\n(2) No item of biological evidence gathered by law enforcement, prosecutorial, or\ndefense authorities that may be subject to deoxyribonucleic acid (DNA) evidence\ntesting and analysis in order to assist federal, state, and lo cal criminal justice and\nlaw enforcement agencies within and outside the Commonwealth in the\nidentification, detection, or exclusion of individuals who are subjects of\ninvestigation or prosecution, or to confirm the guilt or innocence of a criminal\ndefendant, shall be disposed of prior to a criminal trial unless:\n(a) The evidence has been in custody not less than fifty (50) years; or\n(b) The evidence has been in custody not less than ten (10) years; and\n1. The prosecution has determined that the defendant will not be tried for\nthe criminal offense; and\n2. The prosecution has made a motion, before the court in which the case\nwould have been tried, to destroy the evidence.\n(3) No item of biological evidence ga thered by law enforcement, prosecutorial, or\ndefense authorities that may be subject to deoxyribonucleic acid (DNA) evidence\ntesting and analysis in order to confirm the guilt or innocence of a criminal\ndefendant shall be disposed of following the trial unless:\n(a) The evidence, together with DNA evidence testing and analysis results, has\nbeen presented at the trial, and the defendant has been found guilty, pled\nguilty, or entered an Alford plea at the trial;\n(b) The evidence was not introduced at the trial , or if introduced at the trial was\nnot the subject of DNA testing and analysis, and the defendant has been found\nguilty, pled guilty, or entered an Alford plea at the trial, and the trial court has\nordered the destruction of the evidence after an adversar ial hearing conducted\nupon motion of either the prosecution or the defendant;\n(c) The trial resulted in the defendant being found not guilty or the charges were\ndismissed after jeopardy attached, whether or not the evidence was introduced\nat the trial or w as subject to DNA testing and analysis or not, and the trial\ncourt ordered the destruction of the evidence after an adversarial hearing\nconducted upon motion of either the prosecution or the defendant; or\n(d) The trial resulted in the dismissal of charges against the defendant, and the\ndefendant may be subject to retrial, in which event the evidence shall be\nretained until after the retrial, which shall be considered a new trial for the\npurposes of this section.\n(4) The burden of proof for a motion to destr oy biological evidence that may be subject\nto DNA testing and analysis shall be upon the party making the motion, and the\ncourt may permit the destruction of the evidence under this section upon good cause\nshown favoring its destruction.\n(5) It is recognized by the General Assembly that the DNA evidence laboratory testing\nand analysis procedure consumes and destroys a portion of the evidence or may\ndestroy all of the evidence if the sample is small. The consuming and destruction of\nevidence during the labor atory analysis process shall not result in liability for its\nconsumption or destruction if the following conditions are met:\n(a) The Department of Kentucky State Police laboratory uses a method of testing\nand analysis which preserves as much of the biologi cal material or other\nevidence tested and analyzed as is reasonably possible; or\n(b) If the Department of Kentucky State Police laboratory knows or reasonably\nbelieves that the entire sample of evidence to be tested and analyzed that the\nlaboratory, prior to the testing or analysis of the evidence, notifies in writing\nthe court which ordered the testing and analysis and counsel for all parties:\n1. That the entire sample of evidence may be destroyed by the testing and\nanalysis;\n2. The possibility that anothe r laboratory may be able to perform the\ntesting and analysis in a less destructive manner with at least equal\nresults;\n3. The name of the laboratory capable of performing the testing and\nanalysis, the costs of testing and analysis, the advantages of sendin g the\nmaterial to that other laboratory, and the amount of biological material\nor other evidence which might be saved by alternative testing and\nanalysis; and\n4. The Department of Kentucky State Police laboratory follows the\ndirective of the court with regard to the testing and analysis; or\n(c) If the Department of Kentucky State Police laboratory knows or reasonably\nbelieves that so much of the biological material or evidence may be consumed\nor destroyed in the testing and analysis that an insufficient sam ple will remain\nfor independent testing and analysis that the laboratory follows the procedure\nspecified in paragraph (b) of this subsection.\n(6) Destruction of evidence in violation of this section shall be a violation of KRS\n524.100.\n(7) Subject to KRS 4 22.285(9), the appropriate governmental entity shall retain any\nbiological material secured in connection with a criminal case for the period of time\nthat any person remains incarcerated in connection with that case. The\ngovernmental entity shall have the discretion to determine how the evidence is\nretained pursuant to this section, provided that the evidence is retained in a\ncondition suitable for DNA testing and analysis.","path":["KRS Chapter 524"],"source_url":"https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48742","current_through":"Includes enactments through the 2026 Regular Session","vintage":"09/05/2026","retrieved_at":"2026-09-05T21:00:03Z","sha256":"bcbea6a0ed697e097e9e94bbeb066577c83f162010955d6fff339c80fc5b39e1","source_id":"us-ky","stale":false,"prev":"us-ky/krs-524.130","next":"us-ky/krs-525.010"},"notice":"GroundRules: Original legal text. Not legal advice."}