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. 2. The first appeal authorized by the Constitution of Kentucky in a criminal case has been decided; or 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 local criminal justice and law enforcement agencies within and outside 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: the Commonwealth in (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. 2. The prosecution has determined that the defendant will not be tried for the criminal offense; and 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 gathered 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 adversarial 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 was 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 destroy 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 laboratory 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 biological 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. 2. 3. That the entire sample of evidence may be destroyed by the testing and analysis; The possibility that another laboratory may be able to perform the testing and analysis in a less destructive manner with at least equal results; The name of the laboratory capable of performing the testing and analysis, the costs of testing and analysis, the advantages of sending 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 sample 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 422.285(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 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. in connection with incarcerated Effective: June 27, 2019 History: Amended 2019 Ky. Acts ch. 56, sec. 1, effective June 27, 2019. -- Amended 2016 Ky. Acts ch. 58, sec. 10, effective April 8, 2016. -- Amended 2013 Ky. Acts ch. 77, sec. 3, effective June 25, 2013. -- Amended 2007 Ky. Acts ch. 85, sec. 328, effective June 26, 2007. -- Created 2002 Ky. Acts ch. 154, sec. 10, effective July 15, 2002. Legislative Research Commission Note (4/8/2016). 2016 Ky. Acts ch. 58, sec. 11 provided that that Act shall be known as the Sexual Assault Forensic Evidence (SAFE) Act of 2016. This statute was amended in Section 10 of that Act.