[Code of Federal Regulations]
[Title 28, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR28.22]

[Page 458-459]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
                    CHAPTER I--DEPARTMENT OF JUSTICE
 
PART 28_DNA IDENTIFICATION SYSTEM--Table of Contents
 
              Subpart C_Preservation of Biological Evidence
 
Sec. 28.22  The requirement to preserve biological evidence.

    (a) Applicability in general. The requirement of section 3600A to 
preserve biological evidence applies to evidence that has been retained 
in cases in which the offense or conviction occurred prior to the 
enactment of section 3600A or the adoption of this subpart, as well as 
to evidence secured in pending and future cases.
    (b) Limitation to circumstances in which a defendant is under a 
sentence of imprisonment for the offense. The requirement of section 
3600A to preserve

[[Page 459]]

biological evidence secured in the investigation or prosecution of a 
Federal offense begins to apply when a defendant is convicted and 
sentenced to imprisonment for the offense, and ceases to apply when the 
defendant or defendants are released following such imprisonment. The 
evidence preservation requirement of section 3600A does not apply in the 
following situations:
    (1) Inapplicability at the investigative stage. The requirement of 
section 3600A to preserve biological evidence does not apply at the 
investigative stage of criminal cases, occurring prior to the conviction 
and sentencing to imprisonment of a defendant. Biological evidence may 
be collected and preserved in the investigation of Federal offenses 
prior to the sentencing of a defendant to imprisonment, reflecting sound 
investigative practice and the need for evidence in trial proceedings 
that may result from the investigation, but section 3600A does not 
govern these activities.
    (2) Inapplicability to cases involving only non-incarcerative 
sentences. The requirement of section 3600A to preserve biological 
evidence does not apply in cases in which defendants receive only 
nonincarcerative sentences, such as probation, fines, or payment of 
restitution.
    (3) Inapplicability following release. The requirement of section 
3600A to preserve biological evidence ceases to apply when the defendant 
or defendants are released following imprisonment, either 
unconditionally or under supervision. The requirement does not apply 
during any period following the release of the defendant or defendants 
from imprisonment, even if the defendant or defendants remain on 
supervised release or parole.
    (4) Inapplicability following revocation of release. The requirement 
of section 3600A to preserve biological evidence applies during a 
defendant's imprisonment pursuant to the sentence imposed upon 
conviction of the offense, as opposed to later imprisonment resulting 
from a violation of release conditions. The requirement does not apply 
during any period in which the defendant or defendants are imprisoned 
based on the revocation of probation, supervised release, or parole.
    (c) Conditions of preservation. The requirement of section 3600A to 
preserve biological evidence means that such evidence cannot be 
destroyed or disposed of under the circumstances in which section 3600A 
requires its preservation, but does not limit agency discretion 
concerning the conditions under which biological evidence is maintained 
or the transfer of biological evidence among different agencies.