[Code of Federal Regulations]
[Title 28, Volume 1]
[Revised as of July 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR28.25]

[Page 459]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
                    CHAPTER I--DEPARTMENT OF JUSTICE
 
PART 28_DNA IDENTIFICATION SYSTEM--Table of Contents
 
              Subpart C_Preservation of Biological Evidence
 
Sec.  28.25  Exceptions based on a defendant's conduct.

    Subsection (c) of section 3600A makes the biological evidence 
preservation requirement inapplicable in two circumstances relating to 
action (or inaction) by the defendant:
    (a) Waiver by defendant. Section 3600A(c)(2) makes the biological 
evidence preservation requirement inapplicable if the defendant 
knowingly and voluntarily waived DNA testing in a court proceeding 
conducted after the date of enactment, i.e., after October 30, 2004. 
Hence, for example, if a defendant waives DNA testing in the context of 
a plea agreement, in a pretrial colloquy with the court, in the course 
of discovery in pretrial proceedings, or in a postconviction proceeding, 
and the proceeding in which the waiver occurs takes place after October 
30, 2004, the biological evidence preservation requirement of section 
3600A does not apply.
    (b) Notice to defendant. (1) Section 3600A(c)(3) makes the 
biological evidence preservation requirement inapplicable if the 
defendant is notified that the biological evidence may be destroyed 
``after a conviction becomes final and the defendant has exhausted all 
opportunities for direct review of the conviction,'' and ``the defendant 
does not file a motion under section 3600 within 180 days of receipt of 
the notice.''
    (2) Effective notice concerning the possible destruction of 
biological evidence for purposes of section 3600A(c)(3) cannot be given 
if the case is pending on direct review of the conviction before a court 
of appeals or the Supreme Court, if time remains for the defendant to 
file a notice of appeal from the judgment of conviction in the court of 
appeals, or if time remains for the defendant to file a petition for 
certiorari to the Supreme Court following the court of appeals' 
determination of an appeal of the conviction.
    (3) Once direct review has been completed, or the time for seeking 
direct review has expired, section 3600A(c)(3) allows notice to the 
defendant that biological evidence may be destroyed. The biological 
evidence preservation requirement of section 3600A thereafter does not 
apply, unless the defendant files a motion under 18 U.S.C. 3600 within 
180 days of receipt of the notice. Notice to a defendant that biological 
evidence may be destroyed may be provided by certified mail, and the 
Federal Bureau of Prisons shall create a record concerning the delivery 
of such mail to an inmate. To determine whether a defendant has filed a 
motion under 18 U.S.C. 3600 within 180 days of receipt of such a notice, 
the agency providing the notice may obtain confirmation of delivery and 
the date of delivery by inquiry with the Federal Bureau of Prisons, and 
may ascertain whether the defendant has filed a motion under 18 U.S.C. 
3600 within 180 days of that date by checking the records of the 
district court which entered the judgment of conviction of the defendant 
for the offense or asking the United States Attorney's office in that 
district.