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2018 Georgia Code 17-5-56 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 17-5-56 Case Law from Google Scholar Amendments to OCGA 17-5-56

TITLE 17 CRIMINAL PROCEDURE

Section 5. Searches and Seizures, 17-5-1 through 17-5-100.

ARTICLE 3 DISPOSITION OF PROPERTY SEIZED

17-5-56. Maintenance of physical evidence containing biological material.

  1. 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.
  2. 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.

(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.)

The 2011 amendment, effective May 11, 2011, in subsection (b), rewrote the second and third sentences, which read: "In a case that involves the prosecution of a serious violent felony as defined by Code Section 17-10-6.1, a violation of Code Section 16-6-5.1, or sodomy, statutory rape, child molestation, bestiality, incest, or sexual battery as those terms are defined in Chapter 6 of Title 16, the evidence 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 ten years after judgment in the criminal case becomes final or ten years after May 27, 2003, whichever is later. Evidence in all other felony and misdemeanor cases may be purged."

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

Admissibility and Reliability of Hair Sample Testing to Prove Illegal Drug Use, 47 POF3d 203.

Cases Citing O.C.G.A. § 17-5-56

Total Results: 6  |  Sort by: Relevance  |  Newest First

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Clay v. State, 725 S.E.2d 260 (Ga. 2012).

Cited 117 times | Published | Supreme Court of Georgia | Mar 19, 2012 | 290 Ga. 822, 2012 Fulton County D. Rep. 982

...onducting independent testing of the blood samples, defense counsel contacted the State about gaining access to the samples. The State learned the following day that the samples had been destroyed and then notified Clay. A. 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....
...ir samples that relate to the identity of the perpetrator of the crime." However, subsection (a) also provides that "[b]iological samples collected directly from any person for use as reference materials for testing ... shall not be preserved." OCGA § 17-5-56(a)....
...t the time of the crimes was an issue in this case. Clay contends that, at that point, the samples ceased being "merely" reference materials and, instead, became "irreplaceable biological evidence" that the State was obligated to preserve under OCGA § 17-5-56....
...ermining whether his statements to law enforcement officers were voluntary, it did not indicate Clay was claiming his intoxication made him physically incapable of committing the crimes and, thus, he could not have been the perpetrator. Because OCGA § 17-5-56 requires the preservation of biological materials "that relate to the identity of the perpetrator," not samples that a defendant may seek with regard to an issue unrelated to identity, such as his level of intoxication, Clay's contention here is meritless....
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State v. Mussman, 713 S.E.2d 822 (Ga. 2011).

Cited 30 times | Published | Supreme Court of Georgia | Jun 13, 2011 | 289 Ga. 586, 2011 Fulton County D. Rep. 1781

...ehicular homicide. 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: 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...
...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. We granted review to determine (1) whether the Court of Appeals erred in its application of OCGA § 17-5-56(a), and (2) whether the Court of Appeals erred in holding that the State committed a due process violation by failing to preserve evidence....
...A crime scene investigator recovered blood and hair from the hinge on the convertible top and sent it to the crime lab for DNA testing. The testing ultimately confirmed that the biological material came from Stephens. Mussman, supra, 304 Ga.App. at 808-810, 697 S.E.2d 902. 1. In interpreting OCGA § 17-5-56(a), the Court of Appeals held that the statute required that law enforcement maintain not only biological samples, but also the "container" or "source" of the sample....
...l materials the State collected and sent to the crime lab. The State in this case did not maintain the physical evidence containing the biological material"). Based on this interpretation, the Court of Appeals determined that the State violated OCGA § 17-5-56(a) by failing to maintain the car, or at least the hinge inside the car, from which the biological samples were recovered. See id. at 812(1), 697 S.E.2d 902. In order to determine whether the Court of Appeals' interpretation of OCGA § 17-5-56(a) is correct, we must turn to the basic rules of statutory construction....
...189, 191, 587 S.E.2d 24 (2003). Furthermore, "[t]his Court may construe statutes to avoid absurd results." (Citation and punctuation omitted.) Allen v. Wright, 282 Ga. 9, 12(1), 644 S.E.2d 814 (2007). With these principles in mind, the plain language of OCGA § 17-5-56(a) reveals that governmental entities are required to 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....
...ollected biological material itself that "relate to the identity of the perpetrator of the crime." Id. Indeed, in this case, the State maintained the hair and blood samples taken from the vehicle, which was consistent with the plain language of OCGA § 17-5-56(a). In fact, this is exactly the type of evidence that the Legislature explicitly contemplated that governmental entities are required to maintain pursuant to the statute. Id. By holding that OCGA § 17-5-56(a) would require governmental entities to maintain not only biological materials but also the "sources" of such biological materials, the Court of Appeals has gone beyond the plain *825 language of the statute and offered an interpretation that leads to an absurd result....
...The United States Supreme Court has already determined that there is no constitutional due process requirement that police maintain "all material that might be of conceivable evidentiary significance." Id. However, the Court of Appeals' interpretation of OCGA § 17-5-56(a) would force governmental entities to, for example, preserve an entire mattress if DNA evidence were recovered from a portion of the mattress; maintain an entire recliner chair if bodily fluids were recovered from a button on the chair;...
...ificance" to the defense, when preservation of the biological material collected from the items themselves is all that would really be necessary to ensure that a defendant's due process rights would be protected in a criminal case. Id. See also OCGA § 17-5-56(a). We reject the absurd result that would be obtained if the Court of Appeals' interpretation of OCGA § 17-5-56(a) were allowed to stand....
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State v. Mizell, 705 S.E.2d 154 (Ga. 2011).

Cited 25 times | Published | Supreme Court of Georgia | Jan 24, 2011 | 288 Ga. 474

...On March 1, 2004, Mizell filed a general motion to preserve and permit testing of physical evidence. 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 evidence, specifically listing the two sets of cigarette butts....
...The court concluded that the "exculpatory value of the missing cigarette butts should have been apparent prior to the[ir] loss." The court also concluded that the State acted in bad faith in failing to preserve the evidence, because the State violated OCGA § 17-5-56(a) and because the State disregarded Mizell's notice to preserve the evidence and the court's order to test the evidence....
...dless of their "exculpatory or inculpatory nature," and the order does not mention whether the State acted in good or bad faith. Accordingly, Mizell's law of the case claim is without merit. Judgment reversed. All the Justices concur. NOTES [1] OCGA § 17-5-56(a) provides in relevant part that 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 coll...
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State v. Miller, 699 S.E.2d 316 (Ga. 2010).

Cited 14 times | Published | Supreme Court of Georgia | Sep 20, 2010 | 287 Ga. 748, 2010 Fulton County D. Rep. 3051

...Consequently, the evidence was not constitutionally material. Ballard v. State, supra at 16(2), 673 S.E.2d 213. The judgment of the Court of Appeals is reversed. Judgment reversed. All the Justices concur. NOTES [1] OCGA § 17-5-54 provides: (a)(1) Except as provided in Code Sections 17-5-55 and 17-5-56 and subsections (d), (e), and (f) of this Code section, when a law enforcement agency assumes custody of any personal property which is the subject of a crime or has been abandoned or is otherwise seized, a disposition of such property shall be made in accordance with the provisions of this Code section....
...of 90 days following its seizure, or following the final verdict and judgment in the case of property used as evidence, and which is no longer needed in a criminal investigation or for evidentiary purposes in accordance with Code Section 17-5-55 or 17-5-56 shall be subject to disposition by the law enforcement agency....
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Bharadia v. State, 297 Ga. 567 (Ga. 2015).

Cited 8 times | Published | Supreme Court of Georgia | Jun 29, 2015 | 774 S.E.2d 90

...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 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 evidence collected at the time of the crime that contains biological material relating to the identity of the perpetrator of a crime). 7 The Court of...

Bharadia v. State (Ga. 2015).

Published | Supreme Court of Georgia | Jun 29, 2015 | 774 S.E.2d 90

...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 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 evidence collected at the time of the crime that contains biological material relating to the identity of the perpetrator of a crime). 7 The Court of...