Senate Judiciary Minutes 02/12/2001 10:00 AM

" Section 1. Any person convicted of a felony and currently serving a term of imprisonment may file a petition in the circuit court that entered the judgment of conviction in the person's case requesting performance of forensic deoxyribonucleic acid (DNA) testing. The petition shall be served on the state's attorney in the county of conviction. Any response shall be filed within sixty days of the date on which the state's attorney was served with the petition.

Section 2. Before the court may grant the petition, the petitioner shall demonstrate that post- conviction DNA analysis will:

(1) Meet the current test for scientific reliability;

(2) Show that the petitioner would be entitled to the testing and that the results would be admissible if the case were being presently tried;

(3) Show that a favorable test result would most likely produce an acquittal in a new trial; and

(4) Show that the testing will not impose an unreasonable burden on the state.

Section 3. The court, in its discretion, may order a hearing on the petition. The court may appoint legal counsel for the petitioner if the court determines that person is indigent and that appointment is in the best interests of justice. Any legal fees and expenses shall be paid by the county from which the person was convicted.

Section 4. The court may grant the petition for DNA testing if it determines that petitioner has met the four factors to test set out in section 2 of this Act and that DNA testing is suitable under the circumstances. If the court grants the petition for DNA testing, the court order shall identify the specific evidence to be tested and the DNA technology to be used. The testing shall be conducted by a laboratory mutually agreed upon by the state and the person filing the petition. If the parties

cannot agree, the court's order shall designate the laboratory to conduct the testing. DNA testing expenses shall be paid by the county from which the person was convicted.

Section 5. The result of any testing ordered under this Act shall be fully disclosed to the person filing the petition and the state's attorney. If the test results do not result in a new trial, the petitioner shall reimburse the county for the costs of the testing.

Section 6. Any law enforcement agency of the state 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 agency may determine how the evidence is retained. However, the evidence shall be retained in a condition suitable for further DNA testing."

Moved by:    Moore
Second by:    Daugaard
Action:    Prevailed by voice vote.

MOTION:     DO PASS SB 228 AS AMENDED

Moved by:    Hainje
Second by:    Moore
Action:    Prevailed by roll call vote.(6-1-0-0)

Voting Yes:    de Hueck, Hainje, Koetzle, Moore, Daugaard, Whiting

Voting No:    Bogue

         HB 1091: revise certain provisions regarding jurisdiction for certain offenses involving intoxicating substances.

Presented By:    Representative Jarvis Brown
Proponents:    Chuck Schroyer, South Dakota States Attorneys Association

MOTION:     DO PASS HB 1091

Moved by:    Moore
Second by:    Daugaard
Action:    Prevailed by roll call vote.(6-1-0-0)

Voting Yes:    de Hueck, Hainje, Koetzle, Moore, Daugaard, Whiting

Voting No:    Bogue

         HB 1092: include in certain drug offenses the altered state of a controlled drug or substance or marijuana once absorbed into the body.

Presented By:    Representative Jarvis Brown
Proponents:    Chuck Schroyer, South Dakota States Attorneys Association

MOTION:     AMEND HB 1092

1092rb

On page 1, line 8 of the House Judiciary Committee engrossed bill, delete " , " in both places.

On page 2 , line 20, delete " the substance, " .

On page 2 , line 20, after " marijuana " delete " , " .

Moved by:    Bogue
Second by:    Daugaard
Action:    Prevailed by voice vote.

MOTION:     DO PASS HB 1092 AS AMENDED

Moved by:    Bogue
Second by:    Daugaard
Action:    Prevailed by roll call vote.(7-0-0-0)

Voting Yes:    Bogue, de Hueck, Hainje, Koetzle, Moore, Daugaard, Whiting

         HB 1122: modify the time required for a temporary custody hearing to be held in certain juvenile legal proceedings.

Presented By:    Representative Jarvis Brown
Proponents:    Dick Howard, South Dakota Association of County Commissioners (Document #1, #2)
                 Mark Smith, Hughes County States Attorney and Chairman, SDACC State Advisory
                 Group for OJJDP Grant Association

        Mike Leidholt, Hughes County Sheriff and President, South Dakota Sheriffs
         Association
         Virginia Wieseler, Department of Social Services

MOTION:     DO PASS HB 1122

Moved by:    de Hueck
Second by:    Koetzle
Action:    Prevailed by roll call vote.(7-0-0-0)

Voting Yes:    Bogue, de Hueck, Hainje, Koetzle, Moore, Daugaard, Whiting

MOTION:     PLACE HB 1122 ON CONSENT

Moved by:    de Hueck
Second by:    Daugaard
Action:    Prevailed by voice vote.

         HB 1154: clarify the application of certain driving privilege penalties with regard to juvenile adjudications.

Comments:    Senator de Hueck
Proponents:    Cindy Garber, Department of Commerce
Opponents:    Dallas Johnson, Unified Judicial System

MOTION:     AMEND HB 1154

1154ra

On page 2 of the printed bill, delete lines 7 to 19 , inclusive, and insert:

"
Section 2. That § 35-9-7 be repealed.
35-9-7. If the conviction for a violation of § 35-9-1, 35-9-1.1, or 35-9-2 is for a first offense, the court shall, in addition to any other penalty allowed by law, order the revocation of the defendant's driving privileges for a period not less than thirty days and not to exceed one year. However, the court may issue an order permitting the person to operate a motor vehicle for purposes of the person's employment or attendance at school or to court-ordered counseling programs during the hours of the day and the days of the week set forth in the order. The court may also restrict the privilege in such manner as it sees fit for a period not to exceed one year.

If the conviction for a violation of § 35-9-1, 35-9-1.1, or 35-9-2 is for a second or subsequent offense, the court shall, in addition to any other penalty allowed by law, order the revocation of the defendant's driving privileges for a period not less than sixty days and not to exceed one year. ".

Moved by: de Hueck
Second by: Koetzle

Action: Was not acted on.

MOTION: SUBSTITUTE MOTION AMEND HB 1154

1154rb

On page 2, line 10 of the printed bill, overstrike " revocation " and insert " suspension ".

On page 2 , line 18, overstrike " revocation " and insert " suspension ".

Moved by:    de Hueck
Second by:    Koetzle
Action:    Prevailed by voice vote.

MOTION:     DO PASS HB 1154 AS AMENDED

Moved by:    de Hueck
Second by:    Daugaard
Action:    Prevailed by roll call vote.(4-3-0-0)

Voting Yes:    de Hueck, Hainje, Daugaard, Whiting

Voting No:    Bogue, Koetzle, Moore

MOTION:     ADJOURN

Moved by:    Daugaard
Second by:    Bogue
Action:    Prevailed by voice vote.

Nancy Benson

____________________________

Committee Secretary Fred C. Whiting, Chair

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