O.C.G.A.
O.C.G.A.

O.C.G.A. § 17-5-56 (2019)

Maintenance of physical evidence containing biological material

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) Except as otherwise provided in Code Section 17-5-55, on or after May 27, 2003, governmental entities in possession of any physical evidence in a criminal case, including, but not limited to, a law enforcement agency or a prosecuting attorney, shall maintain any physical evidence collected at the time of the crime that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetrator of the crime as provided in this Code section. Biological samples collected directly from any person for use as reference materials for testing or collected for the purpose of drug or alcohol testing shall not be preserved. (b) In a case in which the death penalty is imposed, the evidence shall be maintained until the sentence in the case has been carried out. Evidence in all felony cases that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetrator of the crime shall be maintained for the period of time that the crime remains unsolved or until the sentence in the case is completed, whichever occurs last.

History

Code 1981, § 17-5-56, enacted by Ga. L. 2003, p. 247, § 3; Ga. L. 2008, p. 486, § 2/HB 1297; Ga. L. 2011, p. 264, § 1-3/SB 80.

Annotations

Editor’s notes. - Ga. L. 2011, p. 264, § 1-1/SB 80, not codified by the General Assembly, provides that: ‘‘This Act shall be known and may be cited as the ‘Johnia Berry Act.’ ’’

Law reviews. - For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012). For note on the 2003 enactment of this Code section, see 20 Ga. St. U.L. Rev. 119 (2003).

JUDICIAL DECISIONS Duty of state. - State did not violate O.C.G.A. § 17-5-56(a) by failing to preserve material evidence when, following a single-car accident involving the defendant’s car, the state removed samples of biological evidence from the interior of the defendant’s car and sold the defendant’s car to a salvage wholesaler who then sold the car to a mechanic, who cleaned, repaired, repainted, and resold the vehicle.

State v. Mussman, 289 Ga. 586, 713 S.E.2d 822 (2011). State was not obligated under O.C.G.A. § 17-5-56(a) to preserve four vials of the defendant’s blood that were drawn as reference samples for DNA analysis. Even assuming the defendant’s motion challenging the admissibility of the defendant’s statements put the state on notice that the defendant’s level of intoxication

was an issue in determining whether the statements to law enforcement officers were voluntary, it did not indicate that the defendant was claiming that intoxication made the defendant physically incapable of committing the crimes and, thus, the defendant could not have been the perpetrator. Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012). Cigarette butts not constitutionally material. - Defendant did not show that the cigarette butts found in the dumpster were constitutionally material to the defendant’s defense because although the butts were potentially useful to the defense the defendant raised in the custodial statement and at trial, that another person committed the crimes, that did not establish that the butts had an obvious or readily perceived exculpatory value, and the court’s conclusion that the cigarette butts had apparent exculpatory value to that defense was not supported by the record because the DNA testing could have been exculpatory or inculpatory. Therefore, the lost cigarette butts were not constitutionally material and the trial court erred in granting the defendant’s

motion to dismiss the indictment based on the failure to preserve the cigarette butts found in the dumpster in violation of O.C.G.A. § 17-5-56(a). State v. Mizell, 288 Ga. 474, 705 S.E.2d 154 (2010). Material collected from abortion. - When the defendant was convicted of rape, aggravated child molestation, and enticing a child for indecent purposes, because O.C.G.A. § 17-5-56 applies to physical evidence containing biological material that could identify the perpetrator and is collected at the time of the crime, the statute did not apply to the biological material collected at the victim’s abortion more than two months after the crime occurred; and the statute did not apply to the sample collected from the victim’s abortion because the sample was contaminated due to the storage procedure used by the medical clinic, not the state, and there was no usable biological material that would relate to the identity of the perpetrator. Davis v. State, 329 Ga. App. 797, 764 S.E.2d 588 (2014). Cited in State v. Brown, 333 Ga. App. 643, 777 S.E.2d 27 (2015).

RESEARCH REFERENCES Am. Jur. Proof of Facts. - Admissibility and Reliability of Hair Sample Test-

ing to Prove Illegal Drug Use, 47 POF3d 203.

ARTICLE 4 INVESTIGATING SEXUAL ASSAULT Cross references. - Establishment of sexual assault protocol and committee, § 15-24-2.

Notes of Decisions
Cited in 10 cases, 2010–2015 · leading case: State v. Mussman, 713 S.E.2d 822 (Ga. 2011).
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State v. Mussman, 713 S.E.2d 822 (Ga. 2011). · cites it 22× “In reaching its decision, the Court of Appeals found that the State had acted in bad faith and committed a due process violation by failing to preserve constitutionally material evidence, and found that the State had violated OCGA § 17-5-56 (a), which reads: *587 Except as…”
Clay v. State, 725 S.E.2d 260 (Ga. 2012). · cites it 10× “Alleged Violation of OCGA § 17-5-56. Clay contends that the State was obligated to preserve the vials of blood under OCGA § 17-5-56.”
Mussman v. State, 697 S.E.2d 902 (Ga. Ct. App. 2010). · cites it 44× “OCGA § 17-5-56 does not give the State the discretion to keep only the evidence it deems appropriate or necessary, but directs it to maintain all physical evidence containing biological material that was collected at the time of the crime. The State violated the statute in this…”
State v. Mizell, 705 S.E.2d 154 (Ga. 2011). · cites it 6× “Later in March, the GBI returned the evidence to the Atlanta Police Department, with the note that “[t]his case may contain evidence that must be preserved in accordance with OCGA § 17-5-56." 1 In June 2004, Mizell filed a particularized motion to preserve and test physical…”
Davis v. State, 764 S.E.2d 588 (Ga. Ct. App. 2014). · cites it 14× “was impregnated after the rape, violating both OCGA § 17-5-56 and his due process rights.”
Bharadia v. State, 774 S.E.2d 90 (Ga. 2015). · cites it 2× “6 The distinction between physical evidence (here, the gloves) and the biological material that may be found in or on such evidence (here, skin cells that contain DNA) is recognized in OCGA § 17-5-56 (requiring law enforcement agencies and prosecutors to maintain physical…”
Qenkor Constr., Inc. v. Everett, 773 S.E.2d 821 (Ga. Ct. App. 2015). · cites it 2× “Within 30 days following the creation of the evidence log, physical evidence shall be returned to the rightful owner of the property unless the physical evidence itself is necessary for the appeal of the case, for a new trial, or for purposes of complying with this Code section…”
The State v. Thompson, 780 S.E.2d 67 (Ga. Ct. App. 2015). · cites it 2× “Indeed, OCGA § 17-5-56 (a) provides that with exceptions not applicable here, “[bfiological samples collected directly from any person for use as reference materials for testing or collected for the purpose of drug or alcohol testing shall not be preserved” (Emphasis supplied.”
Melvin James Davis v. State (Ga. Ct. App. 2014). · cites it 12× “was impregnated after the rape, violating both OCGA § 17-5-56 and his Due Process rights.”
Bharadia v. State (Ga. 2015). · cites it 2× “The gloves could have been tested for DNA prior to trial, and once the test results showed the DNA was not a match to Bharadia, he could have requested, prior to trial, 6 The distinction between physical evidence (here, the gloves) and the biological material that may be found…”
— 17-5-56(a) — 1 case
Mussman v. State, 697 S.E.2d 902 (Ga. Ct. App. 2010). “OCGA § 17-5-56 does not give the State the discretion to keep only the evidence it deems appropriate or necessary, but directs it to maintain all physical evidence containing biological material that was collected at the time of the crime. The State violated the statute in this…”
— 17-5-56(b) — 1 case
Mussman v. State, 697 S.E.2d 902 (Ga. Ct. App. 2010). “OCGA § 17-5-56 does not give the State the discretion to keep only the evidence it deems appropriate or necessary, but directs it to maintain all physical evidence containing biological material that was collected at the time of the crime. The State violated the statute in this…”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.