§ 1935. Procedure if person refuses to give sample
(a) If a person who is required to provide a DNA sample under this subchapter refuses
to provide the sample, the Commissioner of the Department of Corrections or of Public
Safety shall file a motion in the Superior Court for an order requiring the person
to provide the sample.
(b) The person who refuses to provide a DNA sample shall be served with a copy of the
motion and shall be entitled to a hearing by the court, limited in scope solely to
the issues described in subsection (c) of this section.
(c) If the court finds that the person who refused to provide a DNA sample is a person
required by section 1933 of this subchapter to provide a DNA sample, the court shall
issue a written order requiring the person to provide the DNA sample in accordance
with the provisions of this subchapter. The court’s order shall also specify the manner
by which the DNA sample shall be obtained and may authorize law enforcement and correctional
personnel to employ reasonable force to obtain the DNA sample. No such employee or
health care professional shall be criminally or civilly liable for the use of reasonable
force.
(d) If the court finds that the person who refused to provide a DNA sample is not a person
required by section 1933 of this subchapter to provide a DNA sample, the court shall
issue a written order relieving the person of the obligation to provide a DNA sample.
(e) If the Supreme Court reverses a determination that a DNA sample shall be provided,
the Department shall destroy the DNA sample and expunge the DNA record as provided
in section 1940 of this subchapter.
(f) Venue for proceedings under this section shall be in the territorial unit of the Superior
Court where the conviction occurred. Hearings under this section shall be conducted
by the Superior Court without a jury and shall be subject to the Vermont Rules of
Civil Procedure as consistent with this section. The State has the burden of proof
by a preponderance of the evidence. Affidavits of witnesses shall be admissible evidence
that may be rebutted by witnesses called by either party. The affidavits shall be
delivered to the other party at least five days prior to the hearing.
(g) A decision of the Superior Court under this section may be appealed as a matter of
right to the Supreme Court. The court’s order shall not be stayed pending appeal unless
the respondent is reasonably likely to prevail on appeal. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2009, No. 154 (Adj. Sess.), § 158.)
Notes of Decisions
Cited in 8
cases (1 in the last 5 years), 2007–2021 · leading case: State v. Martin, 2008 VT 53 (Vt. 2008).
State v. Martin, 2008 VT 53 (Vt. 2008). · cites it 5דSee 20 V.S.A. § 1935(a) ("If a person who is required to provide a DNA sample under this subchapter *1148 refuses to provide the sample, the commissioner of the department of corrections or public safety shall file a motion in the district court for an order requiring the person…”
State v. Wigg, 2007 VT 48 (Vt. 2007). · cites it 3דAttached to its motion, the State submitted the signed Refusal Form, the notice form, and an affidavit from the DOC employee who had attempted to collect defendant's DNA. Based on these supporting materials, the district court granted the State's motion, subject to defendant's…”
State v. Ritter, 2008 VT 72 (Vt. 2008). · cites it 3דSee 20 V.S.A. § 1935. He contends on appeal that the Vermont Public Defender Act, 13 V.”
State v. Medina, 2014 VT 69 (Vt. 2014). “This string of numbers and letters constitutes the “profile” that is uploaded to the state and federal (CODIS) data banks. ¶ 11. Defendants in these cases have all been arraigned on qualifying charges and subsequently refused to give a DNA sample.”
State v. Joseph Leland Bruyette, 2021 VT 43 (Vt. 2021). · cites it 2דWhile defendant testified that these samples were for the Vermont DNA database, the court explained that there was inconclusive evidence to find that either sample was taken for submission to the Vermont database.”
State v. Wigg, 2007 VT 48 (Vt. 2007). · cites it 2ד20 V.S.A. § 1935 (2000). Attached to its motion, the State submitted the signed Refusal Form, the notice form, and an affidavit from the DOC employee who had attempted to collect defendant’s DNA.”
Bruyette v. Menard (Vt. Super. Ct. 2019). · cites it 5דBruyette argues that, by statute, if the DOC seeks a DNA sample despite his refusal, it must file an action seeking to compel him to provide one pursuant to 20 V.S.A. § 1935. He has filed a motion for summary judgment seeking an order (characterized as mandamus) compelling the…”
State v. Martin (Vt. 2008). · cites it 3דSee 20 V.S.A. § 1935(a) (“If a person who is required to provide a DNA sample under this subchapter refuses to provide the sample, the commissioner of the department of corrections or public safety shall file a motion in the district court for an order requiring the person to…”
— Vt. Stat. Ann. tit. 20, § 1935(a) — 3 cases
State v. Martin, 2008 VT 53 (Vt. 2008). “See 20 V.S.A. § 1935(a) ("If a person who is required to provide a DNA sample under this subchapter *1148 refuses to provide the sample, the commissioner of the department of corrections or public safety shall file a motion in the district court for an order requiring the person…”
Bruyette v. Menard (Vt. Super. Ct. 2019). “Bruyette argues that, by statute, if the DOC seeks a DNA sample despite his refusal, it must file an action seeking to compel him to provide one pursuant to 20 V.S.A. § 1935. He has filed a motion for summary judgment seeking an order (characterized as mandamus) compelling the…”
State v. Martin (Vt. 2008). “See 20 V.S.A. § 1935(a) (“If a person who is required to provide a DNA sample under this subchapter refuses to provide the sample, the commissioner of the department of corrections or public safety shall file a motion in the district court for an order requiring the person to…”
— Vt. Stat. Ann. tit. 20, § 1935(b) — 5 cases
State v. Martin, 2008 VT 53 (Vt. 2008). “See 20 V.S.A. § 1935(a) ("If a person who is required to provide a DNA sample under this subchapter *1148 refuses to provide the sample, the commissioner of the department of corrections or public safety shall file a motion in the district court for an order requiring the person…”
State v. Wigg, 2007 VT 48 (Vt. 2007). “Attached to its motion, the State submitted the signed Refusal Form, the notice form, and an affidavit from the DOC employee who had attempted to collect defendant's DNA. Based on these supporting materials, the district court granted the State's motion, subject to defendant's…”
State v. Medina, 2014 VT 69 (Vt. 2014). “This string of numbers and letters constitutes the “profile” that is uploaded to the state and federal (CODIS) data banks. ¶ 11. Defendants in these cases have all been arraigned on qualifying charges and subsequently refused to give a DNA sample.”
State v. Wigg, 2007 VT 48 (Vt. 2007). “20 V.S.A. § 1935 (2000). Attached to its motion, the State submitted the signed Refusal Form, the notice form, and an affidavit from the DOC employee who had attempted to collect defendant’s DNA.”
State v. Martin (Vt. 2008). “See 20 V.S.A. § 1935(a) (“If a person who is required to provide a DNA sample under this subchapter refuses to provide the sample, the commissioner of the department of corrections or public safety shall file a motion in the district court for an order requiring the person to…”
— Vt. Stat. Ann. tit. 20, § 1935(c) — 1 case
State v. Ritter, 2008 VT 72 (Vt. 2008). “See 20 V.S.A. § 1935. He contends on appeal that the Vermont Public Defender Act, 13 V.”
— Vt. Stat. Ann. tit. 20, § 1935(f) — 1 case
Bruyette v. Menard (Vt. Super. Ct. 2019). “Bruyette argues that, by statute, if the DOC seeks a DNA sample despite his refusal, it must file an action seeking to compel him to provide one pursuant to 20 V.S.A. § 1935. He has filed a motion for summary judgment seeking an order (characterized as mandamus) compelling the…”
— Vt. Stat. Ann. tit. 20, § 1935(g) — 2 cases
State v. Martin, 2008 VT 53 (Vt. 2008). “See 20 V.S.A. § 1935(a) ("If a person who is required to provide a DNA sample under this subchapter *1148 refuses to provide the sample, the commissioner of the department of corrections or public safety shall file a motion in the district court for an order requiring the person…”
State v. Martin (Vt. 2008). “See 20 V.S.A. § 1935(a) (“If a person who is required to provide a DNA sample under this subchapter refuses to provide the sample, the commissioner of the department of corrections or public safety shall file a motion in the district court for an order requiring the person to…”
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