Sexual assault forensic evidence: testing.

Senator Wahab, with coauthor Senator Ochoa Bogh, advances a bill that reframes how sexual assault forensic evidence is handled by giving survivors aged 18 and older who are undecided about reporting a formal opt-out option for testing and by detailing when testing may occur.

The bill creates an opt-out framework with two timing paths: if the request is made at the time of the examination, the medical facility must refrain from submitting the kit to a crime laboratory and the investigating agency must retain the kit until testing is requested; if the request is made after the examination, the investigating agency retains the kit, or, if the kit has already been submitted but testing has not begun, the laboratory must return the untested kit for retention. A survivor may later request testing regardless of reporting decisions. Transfers to a laboratory for secure transport, rather than testing, do not constitute a submission for testing and must be documented in the chain of custody. The bill also preserves survivor rights to information about testing status and DNA profiling via the Department of Justice’s portals, including whether a DNA profile was obtained, whether it has been uploaded to CODIS, and whether there is a confirmed match, to the extent disclosure does not impede an ongoing investigation.

Key procedural details address retention and destruction of evidence: in unsolved cases, rape kit and related evidence face extended retention periods (20 years, or until the survivor’s 40th birthday if the survivor was under 18 at the offense), with destruction notices required in advance. A survivor can designate an advocate to receive required information, and the bill specifies notice and reporting requirements for status updates, including access to online status information. The remedy framework provides that the sole civil or criminal remedy for noncompliance is a writ of mandamus to enforce certain retention and notification provisions, and the measure creates a state-mandated local program with potential reimbursement if costs are mandated. Existing timelines for testing and CODIS uploads—such as required submission or rapid-turnaround pathways and related data transfers—remain part of the framework, alongside the opt-out approach.

Beyond survivor rights and kit handling, the bill contemplates operational and fiscal implications: local agencies would bear new duties to implement opt-out procedures, maintain chain-of-custody records, and respond to testing-status inquiries; laboratories would adjust protocols for opt-out cases and for returning untested kits; the Department of Justice and CODIS administration would support survivor access and data integrity. The measure ties these changes to a mandate-reimbursement framework, subject to determinations by the Commission on State Mandates, and seeks to align with existing public-safety objectives related to timely DNA analysis and database matching, while adding a parallel pathway for survivor-driven decisions about testing.