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 — The Founding Bill (1997). Session: 95th Legislature, 1st Session
Title: DNA Detection of Sexual and Violent Offenders Act
Introduced by: Abboud (12), Hudkins (21), Jones (43), Dw. Pedersen (39), Robak (22), Witek (31)
Signed: June 10, 1997
What it did: Created the State DNA Data Base and State DNA Sample Bank, administered by the Nebraska State Patrol and linked to the FBI’s CODIS system. Required felony sex offenders and other specified offenders to submit DNA samples. This is the bill that created the program §29-4104 sits in.
LB 385 — First Major Amendment (2006)
Session: 99th Legislature, 1st/2nd Sessions
Introduced by: Johnson (37), Price (26) — January 12, 2005
Signed: April 13, 2006
What it did: Renamed and expanded the Act’s scope to cover missing persons, relatives of missing persons, and unidentified human remains — this is why §29-4104 now lists those categories. Amended §§29-4101 through 29-4115.
LB 1113 — Second Amendment (2006)
Session: 99th Legislature, 2nd Session. Introduced by: Bourne (8), Mines (18) — January 17, 2006
Signed: April 13, 2006 (same day as LB 385)
What it did: An omnibus civil/criminal regulation bill substantially expanded from its original obscene-literature focus. Touched the DNA Identification Information Act, among dozens of other statutes. Contributed the §30 amendment to §29-4104.
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.