HB 2253

HOUSE OF REPRESENTATIVES
H.B. NO.
2253
THIRTY-THIRD LEGISLATURE, 2026
STATE OF HAWAII
A BILL FOR AN ACT
RELATING
TO THE RETENTION OF BIOLOGICAL EVIDENCE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
���� SECTION 1.�
The Legislature finds that section 844D-126, Hawaii Revised Statutes, appears to
require all evidence custodians in all post-conviction cases to retain all
evidence that "may" contain biological evidence.� As a result, evidence must be retained in all
felony, misdemeanor, petty misdemeanor, and violation cases resulting in
conviction, even when the actual presence of biological evidence is extremely
unlikely; even when that evidence would have been irrelevant to the
identification of the perpetrator; and even when the identity of the
perpetrator was not at issue.
���� The
legislature further finds that this broad evidence retention requirement has
caused storage problems statewide.�
Reasonable guidelines and limitations for the post-conviction retention
of biological evidence by law enforcement agencies and the courts are needed,
as well as a clear procedure that allows defendants to object to the proposed
disposal of biological evidence.
���� The purpose
of this Act is to establish a more practical and balanced framework for
post-conviction evidence retention by:
���� (1)� Limiting the post-conviction retention
requirements to certain serious felony offenses in which the identity of the
perpetrator was in question and the evidence could reasonably be determined to
contain biological material that could be used for DNA analysis to identify or
exclude the defendant as the perpetrator of the offense;
���� (2)� Allowing the disposal of evidence before the
exhaustion of all appeals or the completion of a sentence if the court
determines that the
identity of the defendant as the perpetrator of the offense was not a contested
issue in the case, or that the evidence does not contain biological evidence
that could reasonably be used for DNA analysis to identify or exclude the
defendant as the perpetrator;
���� (3)� Providing defendants with an opportunity to
object to the proposed disposal of evidence; and
���� (4)� Defining "biological evidence."
���� SECTION 2.�
Section 844D-121, Hawaii Revised Statutes, is amended to read as
follows:
���� "�844D-121� Petition for post-conviction DNA testing.� Notwithstanding any other law or rule of
court governing post-conviction relief to the contrary, a person who was
convicted of and sentenced for a crime, or acquitted of a crime on the ground
of physical or mental disease, disorder, or defect excluding responsibility,
may file a motion, at any time, for DNA analysis of any evidence that:
���� (1)� Is
in the custody or control of a police department, prosecuting attorney,
laboratory, or court[[;]], consistent with section 844D-126;
���� (2)� Is
related to the investigation or prosecution that resulted in the judgment of
conviction or of acquittal of a crime on the ground of physical or mental
disease, disorder, or defect excluding responsibility; and
���� (3)� [[May
contain]] Contains biological evidence[[.]] that could
reasonably be used for DNA analysis to:
��������� (A)� Establish the identity of the person who committed the offense
that resulted in the judgment of conviction; or
��������� (B)� Exclude a person from the group of persons who could have
committed the offense that resulted in the judgment of conviction."
���� SECTION 3.�
Section 844D-126, Hawaii Revised Statutes, is amended to read as
follows:
���� "[[[]]�844D-126[[]]]� Retention of biological evidence.� (a)�
[[All]] Any evidence in the custody or control of an
evidence custodian, including a [[police department,]] law
enforcement agency, prosecuting [[attorney,]] agency,
laboratory, or court [[that]], shall be retained if:
���� (1)� The identity
of the defendant, as the perpetrator of the offense that resulted in the
judgment of conviction, was a contested issue in the case;
���� (2)� The
evidence is related to the investigation or prosecution of a case in which
there has been a judgment of conviction [[and that may]] for:
��������� (A)� Murder;
��������� (B)� Manslaughter;
��������� (C)� Kidnapping;
��������� (D)� Sexual assault in the first degree;
��������� (E)� Sexual assault in the second degree;
��������� (F)� Assault in the first degree; or
��������� (G)� An attempt or criminal conspiracy to commit any of the offenses set forth in this paragraph; and
���� (3)� The evidence
could reasonably be determined to contain biological evidence that could be
used for DNA analysis to:
��������� (A)� Establish
the identity of the person who committed the offense that resulted in the
judgment of conviction; or
��������� (B)� Exclude
a person from the group of persons who could have committed the offense that
resulted in the judgment of conviction.
���� (b)�
The evidence retained pursuant to subsection (a) shall be retained
at least until the later occurring of either:
���� (1)� The
exhaustion of all appeals of the case to which the evidence is related; or
���� (2)� The
completion of any sentence, including any term of probation or parole, imposed
on the defendant in the case to which the evidence relates.
���� [[(b)�
The attorney general shall establish procedures and protocols, which
shall be uniform throughout the State, for the collection and preservation of
evidence retained pursuant to this section.]]
���� (c)�
The evidence custodian may dispose of evidence retained pursuant to
subsection (a) before the expiration of the time period specified in subsection
(b) if:
���� (1)� The court, pursuant to subsection (g),
grants a motion for disposal of evidence filed by the prosecuting agency before
sentencing and scheduled to be heard by the court immediately after sentencing
or as soon thereafter as practicable; provided that the motion for disposal
shall include a description of the evidence proposed for disposal; or
���� (2)� The
prosecuting agency or evidence custodian files with the court a notification of
proposed disposal of evidence consistent with this section, and either:
��������� (A)� The defendant does not file a statement of objection pursuant to
subsection (f); or
��������� (B)� If the defendant files a statement of objection pursuant to
subsection (f), the court, after a hearing on the objection, allows disposal of
the evidence pursuant to subsection (g).
���� (d)�
If a notification of proposed disposal of the evidence is filed, a copy
shall be served upon:
���� (1)� The
defendant against whom the judgment of conviction was entered, by personal
service or, after a reasonable and documented good faith attempt for personal
service was made, by first class mail to the defendant's last known address;
���� (2)� The
defendant's parole officer or probation officer, if service cannot be made upon
the defendant by personal service and the defendant remains under parole or
probation supervision;
���� (3)� The
defendant's attorney of record, if applicable;
���� (4)� The
prosecuting agency, if that agency did not file the notification; and
���� (5)� The
evidence custodian, if the evidence custodian did not file the notification.
���� (e)�
The notification of proposed disposal of the evidence shall include:
���� (1)� A
description of the evidence proposed for disposal; and
���� (2)� Notice
that the evidence custodian may dispose of the evidence before the expiration
of the time period specified in subsection (b) unless, within ninety days of
service of the notification, the defendant files a written statement of
objection with the court and serves the statement of objection on the
prosecuting agency and the evidence custodian.
���� (f)�
If within ninety days of service of the notification of proposed
disposal of the evidence on the defendant, defendant's parole or probation
officer, or defendant's attorney of record, whichever service is last
completed, the defendant files a written statement of objection with the court
and serves the statement of objection on the prosecuting agency and the
evidence custodian, the court shall schedule a hearing on the objection and
provide notice of the hearing to the prosecuting agency and the evidence
custodian.
���� (g)�
If, after a hearing on the objection to a notification of proposed
disposal of the evidence or a hearing on a motion for disposal of evidence, the
court determines by a preponderance of the evidence that:
���� (1)� The
identity of the defendant, as the perpetrator of the offense that resulted in
the judgment of conviction, was not a contested issue in the case; or
���� (2)� The
evidence does not contain biological evidence that could reasonably be used for
DNA analysis to:
��������� (A)� Establish the identity of the person who committed the offense
for which the defendant was convicted; or
��������� (B)� Exclude a person from the group of persons who could have
committed the offense for which the defendant was convicted,
the
court may allow the evidence custodian to dispose of the evidence.
���� (h)�
As used in this section, "biological evidence" means an
individual's blood, semen, hair, saliva, skin tissue, fingernail scrapings,
teeth, bone, bodily fluids, or other identifiable biological material,
including the contents of a sexual assault examination kit."
���� SECTION 3.�
This Act does not affect rights and duties that matured, penalties that
were incurred, and proceedings that were begun before its effective date.
���� SECTION 4.�
Statutory material to be repealed is bracketed and stricken.� New statutory material is underscored.
���� SECTION 5.�
This Act shall take effect upon its approval.
INTRODUCED BY:
_____________________________
BY REQUEST
Report Title:
Forensic
Identification; Biological Evidence; Retention
Description:
Specifies
the types of cases in which evidence must be retained post-conviction and the
process by which evidence may be disposed of earlier than the standard period
of retention, which includes a procedure for defendants to oppose the disposal
of biological evidence by filing an objection with the court.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.