[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: 28CFR28.26]

[Page 459-460]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
                    CHAPTER I--DEPARTMENT OF JUSTICE
 
PART 28_DNA IDENTIFICATION SYSTEM--Table of Contents
 
              Subpart C_Preservation of Biological Evidence
 
Sec.  28.26  Exceptions based on the nature of the evidence.

    Subsection (c)(4) of section 3600A provides that the section's 
biological evidence preservation requirement does not apply if ``the 
evidence must be returned to its rightful owner, or is of such a size, 
bulk, or physical character as to render retention impracticable.'' This 
exception is subject to the condition that the Government must ``take[] 
reasonable measures to remove and preserve portions of the material 
evidence sufficient to permit future DNA testing.''
    (a) Evidence not retained beyond the investigative stage. Section 
3600A(c)(4) has no application if items of the sort it describes--e.g., 
items that must be returned to the rightful owner, or items that are so 
large that their retention is impracticable--are not kept until the time 
when a defendant is convicted and sentenced to imprisonment. 
Investigative agents may take samples from such items during the 
investigative stage of the case, in accordance with their judgment about 
what is needed for purposes of DNA testing or other evidentiary use, or 
may conclude that the nature of the items does not warrant taking such 
samples, and the items themselves may then be returned to the owners or 
otherwise disposed of prior to the trial, conviction, or sentencing of 
any defendant. In such

[[Page 460]]

cases, section 3600A is inapplicable, because its evidence preservation 
requirement does not apply at all until a defendant is sentenced to 
imprisonment, as noted in Sec.  28.22(b)(1).
    (b) Evidence not constituting biological material. It is rarely the 
case that a bulky item of the sort described in section 3600A(c)(4), or 
a large part of such an item, constitutes biological evidence as defined 
in section 3600A(b). If such an item is not biological evidence in the 
relevant sense, it is outside the scope of section 3600A. For example, 
the evidence secured in the investigation of a bank robbery may include 
a stolen car that was used in the getaway, and there may be some item in 
the car containing biological material that derives from a perpetrator 
of the crime, such as saliva on a discarded cigarette butt. Even if the 
vehicle is kept until a defendant is sentenced to imprisonment, section 
3600A's preservation requirement would not apply to the vehicle as such, 
because the vehicle is not biological material. It would be sufficient 
for compliance with section 3600A to preserve the particular items in 
the vehicle that contain identified biological material or portions of 
them that contain the biological material.
    (c) Preservation of portions sufficient for DNA testing. If evidence 
described in section 3600A(c)(4) is not otherwise exempt from the 
preservation requirement of section 3600A, and section 3600A(c)(4) is 
relied on in disposing of such evidence, reasonable measures must be 
taken to preserve portions of the evidence sufficient to permit future 
DNA testing. For example, considering a stolen car used in a bank 
robbery, it may be the case that one of the robbers was shot during the 
getaway and bled all over the interior of the car. In such a case, if 
the car is kept until a defendant is sentenced to imprisonment for the 
crime, there would be extensive biological material in the car that 
would potentially be subject to section 3600A's requirement to preserve 
biological evidence. Moreover, the biological material in question could 
not be fully preserved without retaining the whole car or removing and 
retaining large amounts of matter from the interior of the car. Section 
3600A(c)(4) would be relevant in such a case, given that fully retaining 
the biological evidence is likely to be impracticable or inconsistent 
with the rightful owner's entitlement to the return of the vehicle. In 
such a case, section 3600A(c)(4) could be relied on, and its 
requirements would be satisfied if samples of the blood were preserved 
sufficient to permit future DNA testing. Preserving such samples would 
dispense with any need under section 3600A to retain the vehicle itself 
or larger portions thereof.