Can police destroy rape-kit or DNA evidence early if the victim decides not to press charges?

Plain-English summary

A Commonwealth's Attorney asked whether a law enforcement agency could get a court order to destroy biological evidence collected during a sexual assault investigation when only three years had passed since collection and the alleged victim had decided not to pursue criminal charges.

The Attorney General concluded the evidence could not be destroyed that early. Reading the text of KRS 524.140, the opinion explained that biological evidence which may be subject to DNA testing cannot be disposed of before trial unless one of two conditions is met: the evidence has been in custody at least fifty years, or it has been in custody at least ten years and the prosecution has both determined the defendant will not be tried and moved the court to destroy it. Because the evidence in question had been held for less than ten years, neither threshold was satisfied, and the victim's decision not to press charges did not change that. The opinion added that destroying biological evidence in violation of these rules is a Class D felony under KRS 524.140(6).

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

KRS 524.140(1)(a) defined "biological evidence" to include the contents of a sexual assault evidence collection kit and any item (or representative sample) containing blood, saliva, sperm, hair, tissue, bones, teeth, or other bodily fluids collected as part of a criminal investigation that reasonably may be used to incriminate or exculpate a person. KRS 524.140(2) provided that such evidence, where it may be subject to DNA testing and analysis, "shall" not be disposed of prior to a criminal trial unless either (a) it has been in custody at least fifty years, or (b) it has been in custody at least ten years AND the prosecution has determined the defendant will not be tried and has moved the court to destroy it. The Attorney General read the statute's text directly, citing BP Am. Prod. Co. v. Burton for the principle that statutory interpretation starts with the text. Because the evidence had been held under ten years, the opinion concluded neither precondition was met. It noted that KRS 524.140(3) governs the circumstances permitting destruction and that KRS 524.140(6) makes destruction in violation of the statute a Class D felony.

Citations and references

Statutes:

• KRS 524.140 (incl. (1)(a), (2), (2)(a), (2)(b), (3), (6))

Cases:

• BP Am. Prod. Co. v. Burton, 549 U.S. 84 (2006)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2020-01.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601

January 31, 2020

OAG 2020-01

Subject: Whether biological evidence obtained during a criminal sexual assault investigation may be destroyed less than ten years after its collection because the alleged victim chooses not to proceed with criminal charges against the accused.

Requested by: Melvin C. Leonhart, Commonwealth's Attorney, Twentieth Judicial Circuit

Written by: Carmine G. Iaccarino and Marc Manley, Assistant Attorneys General

Syllabus: Under the plain language of KRS 524.140(2)(b), no biological evidence obtained during a criminal sexual assault investigation may be destroyed less than ten years following its collection into evidence, unless the provisions of KRS 524.140(3) apply.

Statute construed: KRS 524.140

Opinion of the Attorney General

Under KRS 524.140, may a law enforcement agency seek a court order to destroy biological evidence obtained from a criminal sexual assault investigation three years after its collection when the alleged victim has declined to press criminal charges? To answer this question, "[w]e start, of course, with the statutory text." BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006). KRS 524.140 describes two instances in which "biological evidence"1 may be destroyed:

No item of biological evidence . . . that may be subject to . . . (DNA) evidence testing and analysis in order to assist federal, state, and local criminal justice and law enforcement agencies within and outside the Commonwealth in the identification, detection, or exclusion of individuals who are subjects of investigation or prosecution, or to confirm the guilt or innocence of a criminal defendant, shall be disposed of prior to a criminal trial unless:

(a) The evidence has been in custody not less than fifty (50) years; or

(b) The evidence has been in custody not less than ten (10) years; and

1. The prosecution has determined that the defendant will not be tried for the criminal offense; and

2. The prosecution has made a motion, before the court in which the case would have been tried, to destroy the evidence.

First, these provisions apply if the biological evidence "may be subject to [DNA] evidence testing and analysis in order to assist federal, state, and local criminal justice and law enforcement agencies within and outside the Commonwealth in the identification, detection, or exclusion of individuals who are subjects of investigation or prosecution, or to confirm the guilt or innocence of a criminal defendant." If this threshold requirement is met, such biological evidence may only be destroyed subject to the two specific statutory preconditions listed. The first provision simply requires that the evidence has been in custody not less than 50 years. The second requires that the evidence has been in custody not less than 10 years. Because the evidence you reference has been in custody for less than ten years, neither of the threshold requirements of KRS 524.140(2)(a) or (b) have been met and the evidence may not be destroyed—regardless of any other considerations.

According to the plain language of KRS 524.140(2), the General Assembly has determined a minimum of ten years must pass before it is appropriate to seek destruction of biological evidence obtained during the course of a sexual assault investigation, unless the accused has already been tried. See KRS 524.140(3). In fact, the destruction of evidence in violation of these provisions is a Class D felony. KRS 524.140(6).

For these reasons, this Office must opine that under KRS 524.140, a law enforcement agency may not seek a court order to destroy biological evidence obtained from a criminal sexual assault investigation three years after its collection and when the alleged victim has declined to press criminal charges.

Daniel Cameron
ATTORNEY GENERAL

Carmine G. Iaccarino
Marc Manley
Assistant Attorneys General

1 According to KRS 524.140(1)(a), biological evidence means "[t]he contents of a sexual assault evidence collection kit" or "[a]ny item, or representative sample taken from an item, that contains blood, saliva, sperm, hair, tissue, bones, teeth, or other bodily fluids that was collected as part of a criminal investigation and that reasonably may be used to incriminate or exculpate any person from an offense or delinquent act."