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.

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.