§ 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.)