Administering Entity
Nebraska State Patrol
Recent / Pending Legislation
- LB 405 (2017, died in 2018) – changes provisions relating to DNA samples, DNA records, and thumbprints under the DNA Identification Information Act.
Arrestees: No.
Case Law: A court “may” order “identification procedures” on probable cause though no order is required / necessary where the individual has been lawfully arrested or under circumstances where a peace officer may otherwise lawfully require / request the individual to provide evidence of identifying physical characteristics. No order is required in the course of trials or other judicial proceedings. Neb. Rev. Stat. Ann. § 29-3302 and 3304. That can include DNA collection. See State v. McKinney, 273 Neb. 346 (2007).
Convicted Offenders: Yes.
Qualifying Crimes:
A person who is convicted of a felony offense or other “specified offense” (misdemeanor stalking; false imprisonment in the second degree; an attempt, conspiracy, or solicitation to commit stalking; false imprisonment in the first degree; knowing and intentional sexual abuse of a vulnerable adult or senior adult; or a violation of the Sex Offender Registration Act), on or after July 15, 2010, who does not have a DNA sample available for use in the State DNA Sample Bank.
Time of Collection: Upon intake to a prison, jail, or other detention facility or institution to which such person is sentenced; or as a condition for any sentence which will not involve an intake into a prison, jail, or other detention facility or institution, by a probation officer at a probation office. A person not placed on probation shall have such DNA sample collected by the county sheriff. All such persons shall not be released unless and until a DNA sample has been collected. If the person is already confined at the time of sentencing, the DNA sample is to be collected immediately after the sentencing, at the place of incarceration or confinement, and the person shall not be released unless and until a DNA sample has been collected. A person who has been convicted of a felony offense or other specified offense before July 15, 2010, who does not have a DNA sample available for use in the State DNA Sample Bank, and who is still serving a term of confinement or probation for such felony offense or other specified offense on July 15, 2010, shall not be released prior to the expiration of his or her maximum term of confinement or revocation or discharge from his or her probation unless and until a DNA sample has been collected. Withdrawal of blood shall be performed in a medically approved manner using a collection kit provided or accepted by the Nebraska State Patrol. The collection of buccal cell samples shall be performed by any person approved or designated by the Nebraska State Patrol and using a collection kit provided or accepted by the Nebraska State Patrol.
Expungement: A person may request expungement on the grounds that the conviction on which the authority for including such person’s DNA record was based has been reversed and the case dismissed. The Nebraska State Patrol shall purge all DNA records and identifiable information in the database pertaining to the person and destroy all DNA samples from the person upon receipt of a written request for expungement and a certified copy of the final court order reversing and dismissing the conviction. Similarly, if the Nebraska State Patrol determines after analysis that a forensic sample has been submitted by an individual who has been eliminated as a suspect in a crime, the patrol or the law enforcement agency which submitted the sample shall destroy the DNA sample and record in the presence of a witness. After destruction, the patrol or law enforcement agency shall make and keep a written record of the destruction, signed by the individual who witnessed the destruction. After the patrol or the law enforcement agency destroys the DNA sample and record, it shall notify the individual if he or she is not a minor or the parent or legal guardian of a minor by certified mail that the sample and record have been destroyed.
Statutes / Case Law
29-4104 – State DNA Database; established; contents; Nebraska State Patrol; duties
29-4105 –DNA samples and records; access restrictions; Nebraska State Patrol; duties
29-4106 – Person subject to DNA sample; payment of costs
29-4107 – DNA samples; persons authorized to obtain samples; immunity
29-4109 – DNA record; expungement; procedure
Shepard v. Houston, 855 N.W.2d 559 (2014)
(Neb. Rev. Stat. Ann. § 29-4106(2)), which prevented an inmate from being released prior to the expiration of his maximum term of confinement or revocation or discharge from his probation unless and until a DNA sample was collected, was ruled an unconstitutional ex post facto law in the context of requiring inmates to submit a DNA sample before being discharged from confinement because the statute was retroactive in its application, as it changed the period of incarceration for a crime committed before its enactment, inmate did not have fair notice of changes to good time scheme and, at the time of his crimes, expected that his mandatory discharge date would be calculated based on a mandatory scheme of good time accumulation and that the only possible forfeiture of this good time would be in finite amounts upon the discretion of the prison officials upon gross or serious misconduct, and statute, in mandating forfeiture of good time and thereby increasing the period of incarceration, was punitive).
The requirement for a convicted felon to provide a DNA sample pursuant to NEB. REV. STAT. ANN. §29-4106(1)(a) exists once the convicted felon begins serving his or her sentence. State v. Weathers, 935 N.W.2d 185 (Neb. 2019).
Legislative History
- LB 278 (95th Legislature, 1st Session, 1997), approved by the Governor June 10, 1997. Adopted the DNA Detection of Sexual and Violent Offenders Act and provided penalties. The legislative findings recite that DNA data banks are an important tool in criminal investigations, in excluding individuals who are the subject of investigation or prosecution, and in deterring and detecting recidivist acts. It established the State DNA Data Base for DNA records and the State DNA Sample Bank as the repository for samples, both administered by the Nebraska State Patrol and linked to the FBI’s Combined DNA Index System, and required felony sex offenders and other specified offenders to submit samples. This is the act in which § 29-4104 originates.
- LB 385 (99th Legislature, 2006), approved by the Governor April 13, 2006. Renamed the Act the DNA Identification Information Act and amended §§ 29-4101 through 29-4109 and 29-4112 through 29-4115, along with § 29-2262 to provide a related condition of probation. Rewrote § 29-4104 so the State DNA Data Base stores and maintains records related to forensic casework “including, but not limited to, forensic casework relating to missing persons, relatives of missing persons, and unidentified human remains,” in addition to convicted offenders and anonymous research and quality-control records. This is the source of the missing-persons categories now in the statute.
- LB 1113 (99th Legislature, 2nd Session, 2006), approved by the Governor April 13, 2006 — the same day as LB 385. An omnibus civil and criminal regulation bill touching dozens of statutes, from recreational use of land and racial profiling to stalking, obscene material, juvenile detention, and parole. Section 30 amended § 29-4104 to add missing persons, relatives of missing persons, and unidentified human remains as a separate fourth category of records rather than as a clarification within forensic casework — a structurally different approach from LB 385’s. Section 31 added a significant collection-method right: a person required to submit a sample under § 29-4106 must be given the choice between a blood draw and a buccal cell collection kit, and the collector must honor that choice.
No program or law. But see Purchase of Rapid DNA for pending regulatory approval (2024) (pertaining to laboratory use).
No program or law. However, adjacent legislation may impact FGG use (requires consent to disclose to law enforcement). Nebraska enacts genetic information privacy act (2024).
No program or law.
No program or law.