Opinion No. (2005)

BILL LOCKYER Attorney General SUSAN DUNCAN LEE Deputy Attorney General THE HONORABLE RAYMOND FORTNER, COUNTY COUNSEL, COUNTY OF LOS ANGELES, has requested an opinion on the following question: Is a governmental entity required to retain biological material secured in connection with a misdemeanor case for the period of time that a person is incarcerated in connection with the case? CONCLUSION A governmental entity is not required to retain biological material secured in connection with a misdemeanor case for the period of time that a person is incarcerated in connection with the case. ANALYSIS In 2000, the Legislature enacted legislation (Pen. Code, §§ 1405 , 1417.9 ) 1 to provide a procedure for prisoners to seek postconviction "DNA" testing of biological evidence. Subdivision (a) of section 1405 provides: "A person who was convicted of a felony and is currently serving a term of imprisonment may make a written motion before the trial court that entered the judgment of conviction in his or her case, for performance of forensic deoxyribonucleic acid (DNA) testing." Section 1417.9 requires government agencies to retain biological material that may become the subject of a…