(1) When DNA evidence that is subject to preservation pursuant to section 18-1-1103 is processed for the development of a DNA profile, the DNA profile shall be preserved by the accredited laboratory in Colorado that develops the DNA profile. If the DNA profile is not developed by an accredited laboratory in Colorado, the laboratory that processes the DNA profile shall send the DNA profile to an accredited laboratory in Colorado for preservation.
A law enforcement agency that has custody of DNA evidence that is subject to preservation pursuant to section 18-1-1103 shall preserve the evidence in an amount and manner sufficient to develop a DNA profile, based on the best scientific practices at the time of collection, from the biological material contained in or included on the evidence. If DNA evidence is of such a size, bulk, or physical character as to render retention impracticable, the law enforcement agency shall remove and preserve portions of the evidence likely to contain DNA related to the offense in a quantity sufficient, based on the best scientific practices at the time of collection, to permit future DNA testing. The preserved DNA evidence shall, whenever possible, include a sample sufficient to allow for independent testing by the defendant. After preserving the necessary amount of the DNA evidence, the law enforcement agency may dispose of the remainder of the evidence.
If a law enforcement agency is asked to produce DNA evidence that is subject topreservation pursuant to section 18-1-1103 and cannot produce the evidence, the chief evidence custodian for the law enforcement agency shall provide an affidavit in which he or she describes, under penalty of perjury, the efforts taken to locate the DNA evidence and affirms that the DNA evidence could not be located.
If upon request a law enforcement agency cannot produce DNA evidence that issubject to preservation pursuant to section 18-1-1103, the court shall determine whether the disposal of the DNA evidence violated the defendant's due process rights, and, if so, the court shall order an appropriate remedy.
Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 98, § 1, effective March 18.
Editor's note: This section is similar to former § 18-1-1102 as it existed prior to 2009.