2023 New Mexico Statutes › Chapter 29 - Law Enforcement › Article 16 - DNA Identification › Section 29-16-6 - Collection of samples.

A. A covered offender shall provide one or more samples to the administrative center, as follows:
(1) a covered offender convicted on or after July 1, 1997 shall provide a sample immediately upon request to the corrections department as long as the request is made before release from any correctional facility or, if the covered offender is not sentenced to incarceration, before the end of any period of probation or other supervised release;
(2) a covered offender incarcerated on or after July 1, 1997 shall provide a sample immediately upon request to the corrections department as long as the request is made before release from any correctional facility;
(3) a covered offender on probation or other supervised release on or after July 1, 1997 shall provide a sample immediately upon request to the corrections department as long as the request is made before the end of any period of probation or other supervised release; and
(4) a covered offender required to register or renew his registration pursuant to the provisions of the Sex Offender Registration and Notification Act [Chapter 29, Article 11A NMSA 1978] shall provide a sample immediately upon request to the county sheriff located in any county in which the sex offender is required to register, unless the sex offender provided a sample while in the custody of the corrections department or to the county sheriff of another county in New Mexico in which the sex offender is registered.
B. A person eighteen years of age or over who is arrested on or after January 1, 2007 for the commission of a felony as provided in Section 1 [29-3-10 NMSA 1978] of this 2006 act shall provide a sample immediately upon request to jail or detention facility personnel, unless:
(1) the person has previously provided a sample sufficient for DNA testing pursuant to the provisions of this section;
(2) the sample is in the possession of the administrative center; and
(3) the sample has not been expunged.
C. Samples from unidentified persons or relatives of a missing person shall be provided to the administrative center, as follows:
(1) upon the completion of a permission to search form authorizing the collection of a DNA sample;
(2) upon the receipt of a properly executed search warrant; or
(3) upon the issuance of a court order.
D. Samples from unidentified human remains shall be provided by the state medical investigator.
E. Samples of known reference materials from missing persons shall be provided by the investigating law enforcement agency.
History:
Laws 1997, ch. 105, § 6; 2003, ch. 256, § 9; 2005, ch. 279, § 13; 2006, ch. 104, § 4.
ANNOTATIONS
The 2006 amendment,
effective January 1, 2007, added Subsection B to provide with exception for the collection of samples from persons eighteen years of age or older, who are arrested for a felony.
Severability.
— Laws 2006, ch. 104, § 11, effective January 1, 2007, provided that if any part or application of this act is held invalid, the remainder or its application to other situations or persons shall not be affected.
The 2005 amendment,
effective July 1, 2005, added Subsection A(4) to provide that a covered offender shall provide a sample upon request of the sheriff of any county in which the sex offender is required to register, unless the sex offender has given a sample while in custody of the corrections department of a sheriff of another county.
Applicability.
— Laws 2005, ch. 279, §14, effective July 1, 2005, provided that Laws 2005, ch. 279, §§ 1 through 13 apply to a person convicted of a sex offense on or after July 1, 2005 and a person convicted of a sex offense prior to July 1, 2005 and who, on July 1, 2005, was still incarcerated, on probation or on parole for commission of that sex offense.
Constitutionality.
— New Mexico's DNA Identification Act, which requires all persons arrested for certain crimes to provide a DNA sample, is not unconstitutional on its face, because weighing the law enforcement need to identify all persons it has arrested for committing a felony, and the sample's subsequent use in a database, against the minimally invasive means for securing the DNA sample from a defendant's cheek weighs in favor of concluding that the search is reasonable under the fourth amendment to the U.S. Constitution and of the N.M. Const., art. II, § 10.
State v. Blea
, 2018-NMCA-052, cert. denied.
Where defendant was convicted of multiple counts of first degree criminal sexual penetration and first degree kidnapping involving four separate victims, and where defendant claimed that New Mexico's DNA Identification Act, which requires all persons arrested for certain crimes to provide a DNA sample, is unconstitutional on its face, defendant's claim was denied, because weighing the law enforcement need to identify all persons it has arrested for committing a felony, and the sample's subsequent use under the combined DNA index system database, against the minimally invasive means for securing the DNA sample from a defendant's cheek weighs in favor of concluding that the search is reasonable under the fourth amendment to the U.S. Constitution and of the N.M. Const., art. II, § 10.
State v. Blea
, 2018-NMCA-052, cert. denied.
Entry of a DNA profile generated from a deceased person into the New Mexico DNA identification system.
— The DNA Identification Act (act), 29-16-1 to 29-16-13 NMSA 1978, requires any convicted felon, sex offender, or individual convicted as an adult pursuant to youthful offender or serious youthful offender proceedings under the Children's Code to provide a DNA sample to be entered into the DNA identification system (NMDIS), and, in addition, any individual over the age of eighteen is required to provide a DNA sample upon arrest for a felony, and although the act does not expressly mention deceased individuals with documented felony arrests or convictions, it is likely, in light of the act's purpose of facilitating the use of DNA records by law enforcement agencies in the identification, detection or exclusion of persons in connection with criminal investigations, that a court would conclude that the act permits the entry of a DNA profile generated from a deceased individual with a documented felony arrest or conviction into NMDIS for the purpose of comparison to evidence profiles generated from unsolved criminal cases.
DNA Identification Act
(1/25/21), Att'y Gen. Adv. Ltr. 2021-02.
The DNA Identification Act does not prohibit a law enforcement agency from conducting DNA searches for the purpose of establishing potential familial matches.
— The DNA Identification Act (act), 29-16-1 to 29-16-13 NMSA 1978, requires any convicted felon, sex offender, or individual convicted as an adult pursuant to youthful offender or serious youthful offender proceedings under the Children's Code to provide a DNA sample to be entered into the DNA identification system (NMDIS), and, in addition, any individual over the age of eighteen is required to provide a DNA sample upon arrest for a felony. Nothing in the act specifies that a DNA search conducted for criminal investigatory purposes may only seek an exact match, or that the identification of a specific individual is the only permissible information that may be conveyed through such a search, and therefore it is likely, notwithstanding certain administrative rules, that in light of the act's purpose of facilitating the use of DNA records by law enforcement agencies in the identification, detection or exclusion of persons in connection with criminal investigations, that a court would conclude that the act does not prohibit a law enforcement agency from conducting searches for the purpose of establishing potential familial matches.
DNA Identification Act
(1/25/21), Att'y Gen. Adv. Ltr. 2021-02.