A. Searches of samples collected pursuant to the DNA Identification Act, for purposes of the missing persons DNA identification system, shall be limited to searches against DNA indexes consisting of:

(1) unidentified persons;

(2) unidentified human remains;

(3) relatives of, or known reference samples from, missing persons;

(4) covered offenders as defined by the DNA Identification Act and maintained by the DNA identification system; and

(5) persons arrested for the commission of a felony as provided in Section 1 of this 2006 act [29-3-10 NMSA 1978].

B. Searches of samples collected from unidentified persons or relatives of missing persons pursuant to the DNA Identification Act shall not be performed against DNA indexes consisting of evidentiary samples resulting from criminal investigations.

History: Laws 2003, ch. 256, § 3; 2006, ch. 104, § 6.

The 2006 amendment, effective January 1, 2007, added Paragraph (5) of Subsection A to add persons 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.

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.