The Vermont Statutes Online
- Subchapter 001: GENERAL PROVISIONS
§ 1871. Department of public safety; commissioner
(a) The department of public safety, created by 3 V.S.A. § 212, shall include a commissioner of public safety.
(b) The head of the department shall be a commissioner of public safety, who shall be a citizen of the United States and shall be selected on the basis of training, experience and qualifications. The commissioner shall be appointed by the governor, with the advice and consent of the senate, for a term of six years.
(c) The commissioner of public safety may contract for security and related traffic control, and receive reimbursement for reasonable costs which shall include costs associated with providing personnel, benefits, equipment, vehicles, insurances and related expenses. These reimbursements shall be credited to a special fund established pursuant to 32 V.S.A. chapter 7, subchapter 5, and be available to offset costs of providing those services.
(d) The commissioner of public safety shall collect fees for the termination of alarms at state police facilities and for response to false alarms.
(e) Termination Fees:
(1) The termination fee for a single dedicated circuit alarm at a state police facility will be $250.00 per user per year.
(2) An alarm company or monitoring service that is authorized to install a multi-unit alarm panel at a state police facility will be assessed a fee of $25.00 per alarm with a minimum fee of $250.00 per panel per year.
(3) An individual or business who programs a tape dialer or other automatic notification device to transmit a voice message to a state police facility, informing the police of a burglary or other emergency, must register such dialer with the state police facility and will be assessed a registration fee of $50.00 per year. The fee includes an onsite inspection by a member of the state police.
(4) If state police respond to an alarm and it is found that the alarm was transmitted by an unregistered tape dialer or similar notification device, a registration fee of $50.00 will be assessed subsequent to that response. Unpaid registration fees are considered to be alarms in default and handled in accordance with the provisions of the section on response terminations.
(f) False Alarms:
(1) A false alarm is notification given to the state police by electronic or telephonic means that an emergency situation exists, when an emergency or other circumstance that could be perceived as an emergency does not exist and to which the state police have responded.
(2) Alarm periods shall be based on the calendar year, January 1 through December 31.
(3) The first false alarm in an alarm period shall be at no cost. The second false alarm in the alarm period shall be assessed at $50.00 and each successive false alarm in the same alarm period shall be assessed at $75.00.
(g) Response Terminations:
(1) Alarm fees which have been assessed and not paid for a period of 60 days from the date of the last billing are considered alarms in default and the state police station commander, with the concurrence of the state police troop commander, may notify the alarm holder that the state police will no longer respond to alarms at that location as long as the alarm holder is in default.
(2) When in the opinion of the station commander, with the concurrence with the troop commander, there exists a chronic false alarm problem which the alarm holder appears not to have taken reasonable measures to correct, the station commander may send notification that the state police will no longer respond to alarms at that location until the problem is corrected even if the alarm holder is not in default on fees assessed.
(h) Appeal: An alarm holder may appeal a decision of the station commander to the troop commander.
(i) The commissioner of public safety may enter into contractual arrangements to perform dispatching functions for state, municipal or other emergency services, establishing charges sufficient to recover the costs of dispatching. Dispatch positions which are fully funded under such contracts may be authorized under the provisions of 32 V.S.A. § 5(b).
(j) Charges collected under subsections (e), (f), and (i) of this section shall be credited to the Vermont law telecommunications special fund and shall be available to the department to offset the costs of providing the services. (Amended 1959, No. 329 (Adj. Sess.), § 36, eff. March 1, 1961; 1985, No. 4, eff. March 9, 1985; 1995, No. 178 (Adj. Sess.), § 342, eff. May 22, 1996; 1995, No. 186 (Adj. Sess.), § 8, eff. May 22, 1996; 1999, No. 49, § 161; 1999, No. 66 (Adj. Sess.), § 49, eff. Feb. 8, 2000; 2005, No. 209 (Adj. Sess.), § 30.)
§ 1872. Duties of commissioner generally
The commissioner shall be the chief enforcement officer of all the statutes, rules and regulations pertaining to the law of the road and the display of lights on vehicles. In addition, the commissioner shall supervise and direct the activities of the state police and of the Vermont criminal information center and, as fire marshal, be responsible for enforcing the laws pertaining to the investigation of fires, the prevention of fires, the promotion of fire safety, and the delivery of fire service training. (Amended 1973, No. 214 (Adj. Sess.), § 7; 2003, No. 141 (Adj. Sess.), § 2, eff. April 1, 2005.)
§ 1872a. Repealed. 2009, No. 33, § 83(i)(4).
§ 1873. Removal of commissioner
During his or her term of office, the governor may remove the commissioner upon charges preferred in writing and after hearing, which shall be a public hearing if the commissioner requests the same, upon the following grounds:
(1) Incompetency amounting to failure to perform his or her official duties competently;
(2) Misconduct in office which shall be construed to include:
(a) failure to be of good behavior;
(b) participation, directly or indirectly, in a political campaign, rally, caucus or other political gathering, other than to vote.
§ 1874. Organization of department by commissioner
(a) The commissioner, with the approval of the governor, shall so organize and arrange the department as will best and most efficiently promote its work and carry out the objectives of this chapter. To that end, the commissioner may, with such approval, create, rearrange and abolish divisions, establish grades, ranks, and positions to be held by members, and formulate, put into effect, alter, and repeal rules and regulations for the administration of the department.
(b) The commissioner may, from time to time, in accordance with the rules adopted by him or her, designate or change the rank or grade to be held by a member. The commissioner may assign or transfer members to serve at such stations and, within the limits of this chapter or other existing law, to perform such duties as he or she shall designate. The commissioner may determine what members other than state police shall give bonds, and prescribe the conditions and amount. (Amended 2005, No. 209 (Adj. Sess.), § 31.)
§ 1875. Radio communication system
(a) The commissioner shall establish a communication system as will best enable the department to carry out the purposes of this chapter. This shall include a radio set furnished, on written request, to the sheriff and state's attorney of each county on a memorandum receipt.
(b) The commissioner may charge to all users of telecommunications services managed, maintained or operated by the department for the benefit of the users a proportionate share of the actual cost of providing the services and products inclusive of administrative costs. Such charges shall be based on a pro rata allocation of the actual costs of services or products, determined in an equitable manner, which shall be representative of services provided to or system usage by individual units of government, including state, local and federal agencies or private nonprofit entities. Such charges shall be credited to the Vermont communication system special fund and shall be available to the department to offset the costs of providing the services. (Amended 1967, No. 48, § 1, eff. March 23, 1967; 1969, No. 266 (Adj. Sess.), § 3, eff. April 8, 1970; 1999, No. 49, § 162.)
§ 1876. Headquarters and stations; equipment
The commissioner shall, from time to time, establish headquarters and stations in such localities as he shall deem advisable for the enforcement of the laws of the state, and to that end, within the limits of appropriations, he may lease, or otherwise acquire, in the name of the state the right to use and maintain lands and buildings, and may purchase or otherwise acquire horses, motor equipment and other supplies including radio and all other equipment and services deemed by him essential for the needs of the department or its members in carrying out their duties. The commissioner may discontinue a headquarters or station, where such action seems to him to be desirable. The commissioner may sell such property as shall have become unnecessary or unfit for further use, and all moneys received therefor shall be paid into the state treasury and credited to the appropriation for the department.
§ 1877. Repealed. 1999, No. 151 (Adj. Sess.), § 9.
§ 1878. Appointment or promotion of members
Within the limits of the appropriation for the department, and in accordance with section 1921 of this title, the commissioner may appoint or promote members to the ranks, grades and position deemed necessary for efficient administration. The commissioner may devise and administer examinations designed to test the qualifications of members and only those applicants shall be appointed or promoted who meet the prescribed standards and qualifications. (Amended 1979, No. 156 (Adj. Sess.), § 2; 1999, No. 142 (Adj. Sess.), § 1.)
§ 1879. Training school and courses
The commissioner of public safety may provide additional in-service training beyond basic training to personnel in the department. The commissioner may seek certification of such training from the director of the criminal justice training council. (Amended 1979, No. 57, § 16.)
§ 1879a. Location of in-service training
In-service training beyond basic training provided personnel in the department shall, when cost effective, be held at the state-owned law enforcement and fire service training facility in Pittsford. Such training operations and facilities of the department shall when practicable be made available to other state and municipal law enforcement personnel. Notwithstanding the requirement of this section, in-service training of one day or less in duration, or longer duration if no commercial overnight lodging is required, may be provided at a department duty station for the personnel assigned to that department. (Added 1993, No. 233 (Adj. Sess.), § 43a, eff. June 21, 1994.)
§ 1880. Disciplinary procedures
(a) Any disciplinary action taken by the department against a member of the department, except a temporary suspension, shall be taken pursuant to the procedures set forth in this section.
(b) Within seven days after the delivery to a member of written charges against such member, the member may file with the commissioner a request for a hearing before a hearing panel appointed in accordance with subsection (d) of this section, which request shall be honored.
(c) If the charged member does not request a hearing within seven days after receipt of the written charges, the commissioner may take such disciplinary action as the commissioner deems appropriate, including reprimand, transfer, suspension, demotion or removal. The member may appeal the charges and the disciplinary action taken by filing an appeal with the state labor relations board within 30 days of the imposition of disciplinary action by the commissioner. When the disciplinary action taken by the commissioner is dismissal, the state labor relations board shall schedule a hearing within 60 days after filing of the appeal, subject to the rules of the board. All hearings before the board under this subsection shall be de novo.
(d) If the member requests a hearing panel, the commissioner shall provide the member with the names of five members, at least one of whom shall have the rank of lieutenant or higher, who have had no connection with the matters at issue. The member shall choose three members from the five names to serve as the hearing panel, provided that at least one member shall have the rank of lieutenant or higher. As soon as is practicable, the panel shall schedule a hearing, at which the member or the member's representative, or both, may cross examine witnesses and present evidence. The panel may issue subpoenas. At the discretion of the charged member the hearing may be closed or public.
(e) The panel shall report to the commissioner whether or not the charges have been proved by a preponderance of the evidence. The panel may make recommendations to the commissioner regarding disciplinary action to be taken if the charges are proved.
(f) If the panel finds that the charges are not proved, any pay or other rights lost through temporary suspension shall be restored. If the panel finds the charges are proved, the commissioner shall take such disciplinary action as the commissioner deems appropriate, including reprimand, transfer, suspension, demotion or removal. The decision of the panel and any resulting disciplinary action taken by the commissioner are final. (Amended 1979, No. 156 (Adj. Sess.), § 4; 1983, No. 230 (Adj. Sess.), § 12; 1991, No. 25; 1995, No. 98 (Adj. Sess.), § 1.)
§ 1881. Expenses; lodging and subsistence
The commissioner shall approve vouchers in payment of expenses incurred by a member in the discharge of his or her duties, to be paid out of appropriations for the department in the manner required by law. Allowance for lodging and subsistence while away from his or her official station may be paid to a member under such terms and conditions as the commissioner may prescribe, subject to collective bargaining. The commissioner may provide lodging and subsistence for a member at his or her official station. (Amended 1981, No. 91, § 19.)
§ 1882. Subpoenas
In connection with any investigation into the internal affairs of the department, the commissioner may request subpoenas for the testimony of witnesses or the production of evidence. The fees for travel and attendance of witnesses shall be the same as for witnesses and officers before a superior court. The fees in connection with subpoenas issued on behalf of the commissioner or the department shall be paid by the state, upon presentation of proper bills of costs to the commissioner. Notwithstanding 3 V.S.A. §§ 809a and 809b, subpoenas requested by the commissioner shall be issued and enforced by the superior court of the unit in which the person subpoenaed resides in accordance with the Vermont Rules of Civil Procedure. (Added 1979, No. 156 (Adj. Sess.), § 5; amended 1983, No. 230 (Adj. Sess.), § 12a; 2009, No. 154 (Adj. Sess.), § 157.)
§ 1883. State law enforcement; memorandum of understanding
(a) The Commissioner of Public Safety shall develop and execute a memorandum of understanding with the Commissioners of Fish and Wildlife, of Motor Vehicles, and of Liquor Control and their respective directors of law enforcement. The memorandum of understanding shall be reviewed at least every two years and shall at a minimum address:
(1) Maximizing collective resources by reducing or eliminating redundancies and implementing a methodology that will enhance overall coordination and communication while supporting the mission of individual enforcement agencies.
(2) Providing for an overall statewide law enforcement strategic plan supported by quarterly planning and implementation strategy sessions to improve efficiencies and coordination on an operational level and ensure interagency cooperation and collaboration of programs funded through grants. The strategic plan should identify clear goals and performance measures that demonstrate results, as well as specific strategic plans for individual enforcement agencies.
(3) Creating a task force concept that will provide for the sharing and disseminating of information and recommendations involving various levels of statewide law enforcement throughout Vermont that will benefit all law enforcement agencies as well as citizens.
(4) Developing an integrated and coordinated approach to multi-agency special teams with the goal of creating a force multiplier, where feasible. These teams will be coordinated by the Vermont State Police during training and deployments.
(5) Providing for the Commissioner of Public Safety, with the approval of the Governor and in consultation with the Commissioners of Motor Vehicles, of Fish and Wildlife, and of Liquor Control, to assume the role of lead coordinator of statewide law enforcement units in the event of elevated alerts, critical incidents, and all hazard events. The lead coordinator shall maintain control until in his or her judgment the event no longer requires coordinated action to ensure the public safety.
(b) Repealed.] (Added 2009, No. 105 (Adj. Sess.), § 2, eff. May 13, 2010; amended 2011, No. 139 (Adj. Sess.), § 51, eff. May 14, 2012; 2015, No. 11, § 26.)
- Subchapter 002: STATE POLICE
§ 1911. Examinations; appointment; promotion; probation
The commissioner shall devise and administer examinations designed to test the qualifications of applicants for positions as state police and only those applicants shall be appointed or promoted who meet the prescribed standards and qualifications. All state police shall be on probation for one year from the date of first appointment. Such examinations shall be with the advice of the department of human resources. (Amended 1979, No. 156 (Adj. Sess.), § 3; 1999, No. 142 (Adj. Sess.), § 2; 2003, No. 156 (Adj. Sess.), § 15.)
§ 1912. Bond and oath
State police shall give bond to the state, at the expense of the state, in such penal sum as the commissioner shall require, conditioned for the faithful performance of their duties. State police and auxiliary state police shall take the oath of office prescribed for sheriffs before the commissioner or any person designated under 12 V.S.A. § 5852 to administer oaths. (Amended 1963, No. 101.)
§ 1913. Uniforms and equipment
Within the appropriation for the department, the commissioner shall provide the state police, and such other members as he or she may designate, with uniforms and all members with the equipment necessary in the performance of their respective duties, which shall remain the property of the state. The commissioner may sell such equipment as may become unfit for use, and all monies received therefor shall be paid into the state treasury and credited to the department appropriation. The commissioner shall keep an inventory and shall charge against each member all property of the department issued to him or her, and if the commissioner shall determine that a loss or destruction was due to the carelessness or neglect of the member, the value of such property shall be deducted from his or her pay.
§ 1914. Powers and immunities
The commissioner of public safety and the state police shall be peace officers and shall have the same powers with respect to criminal matters and the enforcement of the law relating thereto as sheriffs, constables, and local police have in their respective jurisdictions, and shall have all the immunities and matters of defense now available or hereafter made available to sheriffs, constables and local police in a suit brought against them in consequence of acts done in the course of their employment. State police shall be informing or complaining officers with the same powers possessed by sheriffs, deputy sheriffs, constables or police officers of a city or incorporated village as provided in 13 V.S.A. § 5507. (Amended 1959, No. 39.)
§ 1915. Cooperation with fish and wildlife and forest services
State police shall cooperate with game wardens in enforcing the fish and wildlife laws of the state and the laws enacted for the protection and conservation of forests, woodland and other natural resources, and to this end all the powers now or hereafter conferred on game wardens shall be had and exercised by state police.
- Subchapter 003: PERSONNEL ADMINISTRATION RULES
§ 1921. Personnel administration rules
(a) Promotions to the ranks of sergeant and lieutenant shall be based upon the results of a written examination and an oral interview. Promotions to the rank of captain, major, lieutenant colonel or colonel shall be made by the commissioner and it shall not be required that such promotions be based on written and oral examinations.
(b) Nondisciplinary transfers shall be grievable directly to the Vermont labor relations board in accordance with the rules of practice of the board. In any such grievance, the burden shall be on the grievant to establish that the transfer was either discriminatory or disciplinary. (Added 1979, No. 156 (Adj. Sess.), § 1; amended 1981, No. 155 (Adj. Sess.), § 1; 1999, No. 142 (Adj. Sess.), § 3, eff. July 1, 2001.)
§ 1922. Creation of commission; members; duties
(a) There is hereby created the state police advisory commission, which shall provide advice and counsel to the commissioner in carrying out his responsibilities for the management, supervision and control of the Vermont state police.
(b) The commission shall consist of seven members, at least one of whom shall be an attorney and one of whom shall be a retired state police officer, to be appointed by the governor with the advice and consent of the senate.
(c) Members of the commission shall serve for terms of four years, at the pleasure of the governor. Of the initial appointments, one shall be appointed for a term of one year, two for terms of two years, two for terms of three years, and two for terms of four years. Appointments to fill a vacancy shall be for the unexpired portion of the term vacated. The chairman shall be appointed by the Governor.
(d) The creation and existence of the commission shall not relieve the commissioner of his duties under the law to manage, supervise and control the state police.
(e) To ensure that state police officers are subject to fair and known practices, the commission shall advise the commissioner with respect to and review rules concerning promotion, grievances, transfers, internal investigations and discipline.
(f) Members of the commission shall be paid per diem compensation and reimbursement for expenses in accordance with section 1010 of Title 32. (Added 1979, No. 156 (Adj. Sess.), § 1; amended 1995, No. 178 (Adj. Sess.), § 87b; 1999, No. 142 (Adj. Sess.), § 4.)
§ 1923. Internal investigation
(a) The commission shall advise and assist the commissioner in developing and making known routine procedures to ensure that allegations of misconduct by state police officers are investigated fully and fairly, and to ensure that appropriate action is taken with respect to such allegations.
(b) The commissioner shall establish an office of internal investigation within the department, which office shall investigate, or cause to be investigated, all allegations of misconduct by members of the department, except complaints lodged against members of the internal investigation office, which complaints shall be separately and independently investigated by officers designated for each instance by the commissioner, with the approval of the state police advisory commission. The head of the internal affairs unit shall report all allegations and his findings as to such allegations to the commissioner. The head of the internal affairs unit also shall immediately report all allegations to the state's attorney of the county in which the incident took place, to the attorney general and to the governor, unless the head of the unit makes a determination that the allegations do not include violation of a criminal statute. The head of the internal affairs unit shall also report the disposition of all cases so reported to the state's attorney, attorney general and governor.
(c) The office of internal investigation shall maintain a written log with respect to each allegation of misconduct made. The log shall document all action taken with respect to each allegation, including a notation of the person or persons assigned to the investigation, a list of all pertinent documents, all action taken, and the final disposition of each allegation. Failure of any member of the department to report to the office of internal investigation an allegation of misconduct known to such member, shall be grounds for disciplinary action by the commissioner, including dismissal.
(d) Records of the office of internal investigation shall be confidential, except:
(1) The state police advisory commission shall, at any time, have full and free access to such records; and
(2) The commissioner shall deliver such materials from the records of the office of internal investigation as may be necessary to appropriate prosecutorial authorities having jurisdiction; and
(3) The state police advisory commission shall, in its discretion, be entitled to report to such authorities as it may deem appropriate, or to the public, or to both, to ensure that proper action is taken in each case. (Added 1979, No. 156 (Adj. Sess.), § 1; amended 1981, No. 155 (Adj. Sess.), § 2, eff. April 12, 1982.)
- Subchapter 004: STATE DNA DATABASE AND STATE DATA BANK
§ 1931. Policy
It is the policy of this state to assist federal, state, and local criminal justice and law enforcement agencies in the identification, detection, or exclusion of individuals who are subjects of the investigation or prosecution of crimes. Identification, detection, and exclusion may be facilitated by the DNA analysis of biological evidence left by the perpetrator of a crime and recovered from the crime scene. The DNA analysis of biological evidence can also be used to identify missing persons. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2009, No. 1, § 19, eff. March 4, 2009.)
§ 1932. Definitions
As used in this subchapter:
(1) "CODIS" means the FBI's national DNA identification index system that allows storage and exchange of DNA records submitted by state and local forensic DNA laboratories. The term "CODIS" is derived from Combined DNA Index System.
(2) "Department" means the Department of Public Safety.
(3) "DNA" means deoxyribonucleic acid. DNA encodes genetic information that is the basis of human heredity and forensic identification.
(4) "DNA record" means DNA sample identification information stored in the state DNA database or CODIS. A DNA record is the result obtained from the DNA sample typing tests and is referred to as the DNA profile of an individual.
(5) "DNA sample" means a forensic unknown tissue sample or a tissue sample provided by any person convicted of a designated crime. The DNA sample may be blood or other tissue type specified by the Department.
(6) "FBI" means the Federal Bureau of Investigation.
(7) "Forensic unknown sample" means an unidentified tissue sample gathered in connection with a criminal investigation.
(8) "Laboratory" means the Department of Public Safety forensic laboratory. The laboratory's general authority under this subchapter includes specifying procedures for collection and storage of DNA samples.
(9) "Population database" means anonymous DNA records used to assist statistical evaluation.
(10) "State DNA database" means the laboratory DNA identification record system. The State DNA database is a collection of the DNA records related to forensic casework, persons required to provide a DNA sample under this subchapter, and anonymous DNA records used for protocol development or quality control.
(11) "State DNA data bank" means the repository of DNA samples collected and maintained under the provisions of this subchapter.
(12) "Designated crime" means any of the following offenses:
(A) a felony;
(B) 13 V.S.A. § 1042 (domestic assault);
(C) any crime for which a person is required to register as a sex offender pursuant to 13 V.S.A. chapter 167, subchapter 3;
(D) 13 V.S.A. § 1062 (stalking);
(E) 13 V.S.A. § 1025 (reckless endangerment);
(F) a violation of an abuse prevention order as defined in 13 V.S.A. § 1030, excluding violation of an abuse prevention order issued pursuant to 15 V.S.A. § 1104 (emergency relief) or 33 V.S.A. § 6936 (emergency relief);
(G) a misdemeanor violation of 13 V.S.A. chapter 28, relating to abuse, neglect, and exploitation of vulnerable adults;
(H) an attempt to commit any offense listed in this subdivision; or
(I) any other offense, if, as part of a plea agreement in an action in which the original charge was a crime listed in this subdivision and probable cause was found by the court, there is a requirement that the defendant submit a DNA sample to the DNA data bank. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2005, No. 83, § 7, eff. June 28, 2005; 2009, No. 1, § 20, eff. March 4, 2009; 2009, No. 1, § 23, eff. July 1, 2011; 2015, No. 122 (Adj. Sess.), § 1, eff. May 23, 2016.)
§ 1933. DNA sample required
(a) The following persons shall submit a DNA sample:
(1) a person convicted in a court in this State of a designated crime on or after April 29, 1998;
(2) a person who was convicted in a court in this State of a designated crime prior to April 29, 1998 and, after such date, is:
(A) in the custody of the Commissioner of Corrections pursuant to 28 V.S.A. § 701;
(B) on parole for a designated crime;
(C) serving a supervised community sentence for a designated crime; or
(D) on probation for a designated crime.
(b) A person required to submit a DNA sample who is serving a sentence in a correctional facility shall have his or her DNA samples collected or taken at the receiving correctional facility, or at a place and time designated by the Commissioner of Corrections or by a court, if the person has not previously submitted a DNA sample.
(c) A person serving a sentence for a designated crime not confined to a correctional facility shall have his or her DNA samples collected or taken at a place and time designated by the Commissioner of Corrections, the Commissioner of Public Safety, or a court if the person has not previously submitted a DNA sample in connection with the designated crime for which he or she is serving the sentence. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2005, No. 83, § 8, eff. June 28, 2005; 2009, No. 1, § 21, eff. March 4, 2009; 2009, No. 1, § 24, eff. July 1, 2011; 2015, No. 122 (Adj. Sess.), § 2, eff. May 23, 2016.)
§ 1934. Least intrusive means of collection
(a) The DNA sample shall be obtained by withdrawing blood, unless the Department determines that a less intrusive means to obtain a scientifically reliable sample is available, in which event such less intrusive means shall be used.
(b) For purposes of this subchapter, a blood sample may only be drawn by a physician, physician assistant, registered nurse, licensed practical nurse, medical technologist, laboratory assistant, or phlebotomist. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2013, No. 34, § 30a.)
§ 1935. Procedure if person refuses to give sample
(a) If a person who is required to provide a DNA sample under this subchapter refuses to provide the sample, the commissioner of the department of corrections or public safety shall file a motion in the superior court for an order requiring the person to provide the sample.
(b) The person who refuses to provide a DNA sample shall be served with a copy of the motion and shall be entitled to a hearing by the court, limited in scope solely to the issues described in subsection (c) of this section.
(c) If the court finds that the person who refused to provide a DNA sample is a person required by section 1933 of this subchapter to provide a DNA sample, the court shall issue a written order requiring the person to provide the DNA sample in accordance with the provisions of this subchapter. The court's order shall also specify the manner by which the DNA sample shall be obtained and may authorize law enforcement and correctional personnel to employ reasonable force to obtain the DNA sample. No such employee or health care professional shall be criminally or civilly liable for the use of reasonable force.
(d) If the court finds that the person who refused to provide a DNA sample is not a person required by section 1933 of this subchapter to provide a DNA sample, the court shall issue a written order relieving the person of the obligation to provide a DNA sample.
(e) If the supreme court reverses a determination that a DNA sample shall be provided, the department shall destroy the DNA sample and expunge the DNA record as provided in section 1940 of this subchapter.
(f) Venue for proceedings under this section shall be in the territorial unit of the superior court where the conviction occurred. Hearings under this section shall be conducted by the superior court without a jury and shall be subject to the Vermont Rules of Civil Procedure as consistent with this section. The state has the burden of proof by a preponderance of the evidence. Affidavits of witnesses shall be admissible evidence which may be rebutted by witnesses called by either party. The affidavits shall be delivered to the other party at least five days prior to the hearing.
(g) A decision of the superior court under this section may be appealed as a matter of right to the supreme court. The court's order shall not be stayed pending appeal unless the respondent is reasonably likely to prevail on appeal. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2009, No. 154 (Adj. Sess.), § 158.)
§ 1936. Compatibility with national system; authority to enter into DNA identification index system agreements with state, federal and foreign jurisdictions
The DNA database system established by the state shall be compatible with the FBI's national DNA identification index system currently referred to as CODIS. The state may enter into any agreement with a state, federal or foreign law enforcement agency that provides for participation in a state, federal or foreign DNA identification index system, including CODIS, provided that the agreements shall be consistent in all material respects with this subchapter. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998.)
§ 1937. Authorized analysis of DNA samples
(a) Analysis of DNA samples is authorized:
(1) to type the genetic markers from DNA samples for law enforcement identification purposes;
(2) if personal identifying information is removed, for protocol development and administrative purposes, including:
(A) development of a population database;
(B) to support identification protocol development of forensic DNA analysis methods; and
(C) for quality control purposes; or
(3) to assist in the identification of human remains.
(b) Analysis of DNA samples obtained pursuant to this subchapter is not authorized for identification of any medical or genetic disorder. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998.)
§ 1938. Storage and use of samples and records
(a) A DNA sample and a DNA record obtained pursuant to this subchapter shall be used only for the purposes authorized in this subchapter and may be provided to law enforcement agencies for lawful law enforcement purposes.
(b) The tissue, fluid, or other substance from which the DNA is extracted shall be used only for DNA sample analysis authorized in this subchapter and may be provided to law enforcement agencies only for DNA sample analysis for use in any investigation and prosecution.
(c) Only DNA samples shall be stored in the state DNA data bank.
(d) Only DNA records derived from DNA samples shall be stored in the state DNA database.
(e) Except as provided in section 1939 of this chapter, no DNA records derived from DNA samples shall be aggregated or stored in any database, other than CODIS and the state DNA database, that is accessible by any person other than by the department for the purpose for which the samples were collected.
(f)(1) Except for forensic unknown samples, no samples of tissue, fluid or other biological substance voluntarily submitted or obtained by the execution of a nontestimonial identification order shall be entered into the state DNA data bank. However, such samples may be used for any other purpose authorized in section 1937 of this subchapter.
(2) Notwithstanding the prohibition of subdivision (1) of this subsection, any sample which may lead to an exculpatory result shall be used only for the purpose of the criminal investigation and related criminal prosecution for which the samples were obtained. Upon the conclusion of the criminal investigation and finalization of any related criminal prosecution, such samples shall be placed under seal, and shall not be used for any purpose whatsoever, except pursuant to a judicial order for good cause shown.
(3) Notwithstanding the prohibition of subdivision (1) of this subsection, any sample which may lead to an exculpatory result shall be used only for the purpose of the criminal investigation and related criminal prosecution for which the samples were obtained. Upon the conclusion of the criminal investigation and finalization of any related criminal prosecution, the genetic records shall be placed under seal, and shall not be used for any purpose whatsoever, except pursuant to a judicial order for good cause shown.
(g) Except for records obtained from forensic unknown samples, no DNA records of samples of tissue, fluid or other biological substance which were obtained as the result of either consensual submission of biological evidence or the execution of a nontestimonial identification order shall be entered into the state DNA database. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998.)
§ 1939. Population database
(a) Only the DNA records derived from the DNA samples obtained under sections 1933 and 1934 of this title, DNA records voluntarily submitted to the population database, and DNA records from population databases in existence on January 1, 1999 may be used to develop a population database after all personal identifying information is removed.
(b) Nothing shall prohibit the laboratory from sharing or disseminating a population database with other law enforcement agencies, crime laboratories that serve them, or other third parties the laboratory deems necessary to assist the laboratory with statistical analysis of the laboratory's population databases. The population database may be made available to other agencies participating in CODIS. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998.)
§ 1940. Expungement of records and destruction of samples
(a) In accordance with procedures set forth in subsection (b) of this section, the Department shall destroy the DNA sample and any records of a person related to the sample that were taken in connection with a particular alleged designated crime in either of the following circumstances:
(1) A person's conviction related to an incident that caused the DNA sample to be taken is reversed, and the case is dismissed.
(2) The person is granted a full pardon related to an incident that caused the DNA sample to be taken.
(b) If any of the circumstances in subsection (a) of this section occur, the court with jurisdiction or, as the case may be, the Governor, shall so notify the Department, and the person's DNA record in the State DNA database and CODIS and the person's DNA sample in the State DNA data bank shall be removed and destroyed. The laboratory shall purge the DNA record and all other identifiable information from the State DNA database and CODIS and destroy the DNA sample stored in the State DNA data bank. If the person has more than one entry in the State DNA database, CODIS, or the State DNA data bank, only the entry related to the dismissed case shall be deleted. The Department shall notify the person upon completing its responsibilities under this subsection, by certified mail addressed to the person's last known address.
(c) If the identity of the subject of a forensic unknown sample becomes known and that subject is excluded as a suspect in the case, the sample record shall be removed from the State DNA database upon the conclusion of the criminal investigation and finalization of any criminal prosecution.
(d) If a DNA sample from the State DNA database, CODIS, or the State DNA data bank is matched to another DNA sample during the course of a criminal investigation, the record of the match shall not be expunged even if the sample itself is expunged in accordance with the provisions of this section. If a match has been made and any of the circumstances in subsection (a) of this section occur, the Department may confirm the match prior to expunging the sample. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2005, No. 83, § 9, eff. June 28, 2005; 2009, No. 1, § 22, eff. March 4, 2009; 2009, No. 1, § 25, eff. July 1, 2011; 2015, No. 122 (Adj. Sess.), § 3, eff. May 23, 2016.)
§ 1941. Confidentiality of records
(a) All DNA samples submitted to the laboratory pursuant to this subchapter shall be confidential.
(b) DNA records shall not be used for any purpose other than as provided in section 1937 of this subchapter; provided that in appropriate circumstances such records may be used to identify missing persons.
(c) Any person who intentionally violates this section shall be imprisoned not more than one year or fined not more than $10,000.00, or both.
(d) Any individual aggrieved by a violation of this section may bring an action for civil damages including punitive damages, equitable relief, including restraint of prohibited acts, restitution of wages or other benefits, reinstatement, costs, reasonable attorney's fees and other appropriate relief. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998.)
§ 1942. Adoption of rules and guidelines
(a) The department shall adopt rules pursuant to chapter 25 of Title 3 governing the procedures to be used in the collection, submission, identification, dissemination, analysis and storage of DNA samples and the DNA record of DNA samples submitted under this subchapter.
(b) The department shall adopt rules pursuant to chapter 25 of Title 3 governing the methods of obtaining information from the state database and CODIS, and procedures for verification of the identity and authority of the requester.
(c) The department shall also adopt guidelines to ensure that DNA identification records meet relevant audit standards for forensic DNA laboratories and that the laboratory procedures include the implementation of DNA quality assurance and proficiency testing standards issued by the FBI director.
(d) The rules and guidelines required by this section shall be adopted on or before December 1, 1998. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998.)
§ 1943. Responsibility of department of public safety
The department shall be responsible for establishing and maintaining the state DNA database and state DNA data bank as established by this subchapter. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998.)
§ 1944. Limitation of liability for collection of DNA samples
No civil or criminal liability shall attach to any person authorized to withdraw blood as a result of the act of collecting DNA samples under this subchapter, provided the DNA samples are collected according to recognized medical procedures. However, no person shall be relieved from liability for negligence in withdrawing of a DNA sample. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998.)
§ 1945. Unlawful tampering with DNA samples
A person who knowingly or intentionally, without lawful authority, tampers or attempts to tamper with a DNA sample shall be imprisoned not more than three years or fined not more than $10,000.00, or both. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998.)
§ 1946. Repealed. 2013, No. 142 (Adj. Sess.), § 93.