2A:84A-32g Preservation of biological evidence.

3. a. Every law enforcement or prosecuting agency shall preserve any biological evidence secured in relation to an investigation or prosecution of a crime while:

(1) The crime remains unsolved; or

(2) The person convicted of that crime remains in custody.

b. The provisions of this section shall apply to biological evidence that:

(1) Was in the possession of the agency during the investigation and prosecution of the case; and

(2) At the time of conviction was likely to contain biological material.

c. The agency shall not destroy biological evidence if an additional co-defendant, convicted of the same crime, remains in custody and shall preserve this evidence while all co-defendants remain in custody.

d. The agency shall retain evidence in the amount and in a manner sufficient to develop a DNA profile from the biological material contained in or included on the evidence.

e. Upon written request of a defendant, the agency shall prepare an inventory of biological evidence that has been preserved in connection with the defendant's criminal case.

f. The agency may destroy evidence that includes biological material before the expiration of the time period specified in subsection a. of this section if:

(1) No other provision of federal or State law requires the agency to preserve the evidence;

(2) The agency sends certified delivery of notice of intent to destroy the evidence to:

(a) all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment related to the evidence in question;

(b) the attorney of record for each person in custody;

(c) the public defender;

(d) the county prosecutor where the person was convicted; and

(e) the Attorney General; and

(3) A person notified pursuant to paragraph (2) of subsection f. of this section, within 180 days after the date of receipt of the notice, does not:

(a) file a motion for performance of forensic DNA testing under section 1 of P.L.2001, c.377 (C.2A:84A-32a); or

(b) submit a written request for retention of evidence to the agency which provided notice of its intent to destroy evidence under paragraph (2) of subsection f. of this section.

g. If the agency receives a written request for retention of biological evidence after providing notice under paragraph (2) of subsection f. of this section of its intent to destroy that evidence, the agency shall retain the evidence while the person remains in custody.

h. The agency shall not be required to preserve physical evidence that is of such a size, bulk, or physical character as to render retention impracticable. When such retention is impracticable, the agency shall remove and preserve portions of the material evidence likely to contain biological evidence related to the offense, in a quantity sufficient to permit future DNA testing before returning or disposing of the physical evidence.

i. If the agency is unable to locate biological evidence that it is required to preserve under this act, the chief evidence custodian assigned to the entity charged with the preservation of the evidence shall provide an affidavit stipulating under penalty of perjury that describes the efforts taken to locate that evidence and that the evidence could not be located.

L.2017, c.248, s.3.