97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB2195

 

Introduced , by Rep. Susana A. Mendoza

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/31-4  from Ch. 38, par. 31-4
725 ILCS 5/107-2.5 new
730 ILCS 5/5-4-3  from Ch. 38, par. 1005-4-3

    Amends the Criminal Code of 1961. Provides that the offense of obstructing justice also includes destroying, altering, concealing, disguising, or otherwise tampering with samples collected for DNA fingerprinting analysis. Provides that the offense is a Class 3 felony. Amends the Code of Criminal Procedure of 1963 and the Unified Code of Corrections. Provides that every person arrested for committing a felony shall have a sample of his or her saliva or tissue taken for DNA fingerprinting analysis, at the time of booking, for the purpose of determining identity and for certain other specified purposes. Provides that subject to appropriation, the Department of State Police shall implement this provision. Provides that this provision becomes operative no later than the earlier of the following: (1) the date on which the Department of State Police informs law enforcement agencies that the Department is ready to collect samples; or (2) January 1, 2013. Provides that in the amendatory changes to the Unified Code of Corrections, intentionally using genetic marker grouping analysis information derived from a DNA sample beyond authorized uses is a Class 3 rather than a Class 4 felony. Provides that the identification, detention, arrest, or conviction of a person based upon a database match or database information is not invalidated if it is later determined that the sample should not have been obtained or placed in the database. Effective immediately.


LRB097 08671 RLC 48800 b

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY
FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 1961 is amended by changing
5Section 31-4 as follows:
 
6    (720 ILCS 5/31-4)  (from Ch. 38, par. 31-4)
7    Sec. 31-4. Obstructing justice.
8    (a) A person obstructs justice when, with intent to prevent
9the apprehension or obstruct the prosecution or defense of any
10person, he knowingly commits any of the following acts:
11    (1) (a) Destroys, alters, conceals or disguises physical
12evidence, plants false evidence, furnishes false information;
13or
14    (2) (b) Induces a witness having knowledge material to the
15subject at issue to leave the State or conceal himself; or
16    (3) (c) Possessing knowledge material to the subject at
17issue, he leaves the State or conceals himself; or .
18    (4) Destroys, alters, conceals, disguises, or otherwise
19tampers with samples collected under Section 107-2.5 of the
20Code of Criminal Procedure of 1963 or Section 5-4-3 of the
21Unified Code of Corrections.
22    (b) (d) Sentence.
23        (1) Obstructing justice is a Class 4 felony, except as

 

 

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1    provided in paragraph (2) of this subsection (b) (d).
2        (2) Obstructing justice in furtherance of streetgang
3    related or gang-related activity, as defined in Section 10
4    of the Illinois Streetgang Terrorism Omnibus Prevention
5    Act, is a Class 3 felony. Obstructing justice in violation
6    of paragraph (a)(4) is a Class 3 felony.
7(Source: P.A. 90-363, eff. 1-1-98.)
 
8    Section 10. The Code of Criminal Procedure of 1963 is
9amended by adding Section 107-2.5 as follows:
 
10    (725 ILCS 5/107-2.5 new)
11    Sec. 107-2.5. DNA fingerprinting analysis.
12    (a) Every person arrested for committing a felony as
13defined in Section 2-7 of the Criminal Code of 1961 shall have
14a sample of his or her saliva or tissue taken for DNA
15fingerprinting analysis, at the time of booking, for the
16purpose of determining identity and for the purposes specified
17in this Section and subsection (f) of Section 5-4-3 of the
18Unified Code of Corrections. Any law enforcement agency
19extracting DNA samples under this Section shall be required to
20follow all written rules and regulations for the collection,
21storage, and processing of those samples promulgated by the
22Department of State Police. The analysis shall be performed by
23the Department of State Police or a specific agent approved by
24the Department of State Police. The identification

 

 

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1characteristics resulting from the DNA analysis shall be stored
2and maintained by the Department of State Police or the
3specific agent approved by the Department. All results
4developed from collected DNA samples shall be subject to any
5and all confidentiality provisions of State and federal laws.
6The specific agent approved by the Department of State Police
7to store and analyze DNA samples shall be required to meet all
8Illinois State Police laboratory accreditation requirements
9and shall properly forward the results of the DNA analysis to
10the Department of State Police.
11    (b) If charges are dismissed or an individual is found not
12guilty, any expungement of that person's DNA sample shall be in
13accordance with the procedures set forth in Section 5 of the
14Criminal Identification Act upon notification to the
15Department of State Police by the court system.
16    (c) Subject to appropriation, the Department of State
17Police shall implement this Section no later than the earlier
18of the following: (1) the date on which the Department of State
19Police informs law enforcement agencies that the Department is
20ready to collect samples; or (2) January 1, 2013.
 
21    Section 15. The Unified Code of Corrections is amended by
22changing Section 5-4-3 as follows:
 
23    (730 ILCS 5/5-4-3)  (from Ch. 38, par. 1005-4-3)
24    Sec. 5-4-3. Persons convicted of, or found delinquent for,

 

 

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1certain offenses or institutionalized as sexually dangerous;
2specimens; genetic marker groups.
3    (a) Any person convicted of, found guilty under the
4Juvenile Court Act of 1987 for, or who received a disposition
5of court supervision for, a qualifying offense or attempt of a
6qualifying offense, arrested for or convicted or found guilty
7of any offense classified as a felony under Illinois law,
8convicted or found guilty of any offense requiring registration
9under the Sex Offender Registration Act, found guilty or given
10supervision for any offense classified as a felony under the
11Juvenile Court Act of 1987, convicted or found guilty of, under
12the Juvenile Court Act of 1987, any offense requiring
13registration under the Sex Offender Registration Act, or
14institutionalized as a sexually dangerous person under the
15Sexually Dangerous Persons Act, or committed as a sexually
16violent person under the Sexually Violent Persons Commitment
17Act shall, regardless of the sentence or disposition imposed,
18be required to submit specimens of blood, saliva, or tissue to
19the Illinois Department of State Police in accordance with the
20provisions of this Section, provided such person is:
21        (1) convicted of a qualifying offense or attempt of a
22    qualifying offense on or after July 1, 1990 and sentenced
23    to a term of imprisonment, periodic imprisonment, fine,
24    probation, conditional discharge or any other form of
25    sentence, or given a disposition of court supervision for
26    the offense;

 

 

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1        (1.5) found guilty or given supervision under the
2    Juvenile Court Act of 1987 for a qualifying offense or
3    attempt of a qualifying offense on or after January 1,
4    1997;
5        (2) ordered institutionalized as a sexually dangerous
6    person on or after July 1, 1990;
7        (3) convicted of a qualifying offense or attempt of a
8    qualifying offense before July 1, 1990 and is presently
9    confined as a result of such conviction in any State
10    correctional facility or county jail or is presently
11    serving a sentence of probation, conditional discharge or
12    periodic imprisonment as a result of such conviction;
13        (3.5) convicted or found guilty of any offense
14    classified as a felony under Illinois law or found guilty
15    or given supervision for such an offense under the Juvenile
16    Court Act of 1987 on or after August 22, 2002;
17        (4) presently institutionalized as a sexually
18    dangerous person or presently institutionalized as a
19    person found guilty but mentally ill of a sexual offense or
20    attempt to commit a sexual offense;
21        (4.5) ordered committed as a sexually violent person on
22    or after the effective date of the Sexually Violent Persons
23    Commitment Act; or
24        (5) seeking transfer to or residency in Illinois under
25    Sections 3-3-11.05 through 3-3-11.5 of the Unified Code of
26    Corrections and the Interstate Compact for Adult Offender

 

 

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1    Supervision or the Interstate Agreements on Sexually
2    Dangerous Persons Act; or .
3        (6) arrested and is suspected of committing a felony as
4    defined in Section 2-7 of the Criminal Code of 1961 on or
5    after the operative date of Section 107-2.5 of the Code of
6    Criminal Procedure of 1963.
7    Notwithstanding other provisions of this Section, any
8person incarcerated in a facility of the Illinois Department of
9Corrections or the Illinois Department of Juvenile Justice on
10or after August 22, 2002, whether for a term of years, natural
11life, or a sentence of death, who has not yet submitted a
12sample of blood, saliva, or tissue shall be required to submit
13a specimen of blood, saliva, or tissue prior to his or her
14final discharge, or release on parole or mandatory supervised
15release, as a condition of his or her parole or mandatory
16supervised release, or within 6 months from August 13, 2009
17(the effective date of Public Act 96-426), whichever is sooner.
18A person incarcerated on or after August 13, 2009 (the
19effective date of Public Act 96-426) shall be required to
20submit a sample within 45 days of incarceration, or prior to
21his or her final discharge, or release on parole or mandatory
22supervised release, as a condition of his or her parole or
23mandatory supervised release, whichever is sooner. These
24specimens shall be placed into the State or national DNA
25database, to be used in accordance with other provisions of
26this Section, by the Illinois State Police.

 

 

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1    Notwithstanding other provisions of this Section, any
2person sentenced to life imprisonment in a facility of the
3Illinois Department of Corrections after the effective date of
4this amendatory Act of the 94th General Assembly or sentenced
5to death after the effective date of this amendatory Act of the
694th General Assembly shall be required to provide a specimen
7of blood, saliva, or tissue within 45 days after sentencing or
8disposition at a collection site designated by the Illinois
9Department of State Police. Any person serving a sentence of
10life imprisonment in a facility of the Illinois Department of
11Corrections on the effective date of this amendatory Act of the
1294th General Assembly or any person who is under a sentence of
13death on the effective date of this amendatory Act of the 94th
14General Assembly shall be required to provide a specimen of
15blood, saliva, or tissue upon request at a collection site
16designated by the Illinois Department of State Police.
17    (a-5) Any person who was otherwise convicted of or received
18a disposition of court supervision for any other offense under
19the Criminal Code of 1961 or who was found guilty or given
20supervision for such a violation under the Juvenile Court Act
21of 1987, may, regardless of the sentence imposed, be required
22by an order of the court to submit specimens of blood, saliva,
23or tissue to the Illinois Department of State Police in
24accordance with the provisions of this Section.
25    (b) Any person required by paragraphs (a)(1), (a)(1.5),
26(a)(2), (a)(3.5), and (a-5) to provide specimens of blood,

 

 

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1saliva, or tissue shall provide specimens of blood, saliva, or
2tissue within 45 days after sentencing or disposition at a
3collection site designated by the Illinois Department of State
4Police.
5    (c) Any person required by paragraphs (a)(3), (a)(4), and
6(a)(4.5) to provide specimens of blood, saliva, or tissue shall
7be required to provide such samples prior to final discharge or
8within 6 months from August 13, 2009 (the effective date of
9Public Act 96-426), whichever is sooner. These specimens shall
10be placed into the State or national DNA database, to be used
11in accordance with other provisions of this Act, by the
12Illinois State Police.
13    (c-5) Any person required by paragraph (a)(5) to provide
14specimens of blood, saliva, or tissue shall, where feasible, be
15required to provide the specimens before being accepted for
16conditioned residency in Illinois under the interstate compact
17or agreement, but no later than 45 days after arrival in this
18State.
19    (c-6) The Illinois Department of State Police may determine
20which type of specimen or specimens, blood, saliva, or tissue,
21is acceptable for submission to the Division of Forensic
22Services for analysis.
23    (c-7) Any person required by paragraph (a)(6) to provide
24specimens of saliva or tissue shall be required to provide the
25specimens at the booking procedure. The law enforcement officer
26shall verify at each arrest that the arrestee sample is not

 

 

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1already on file with the Department of State Police.
2    (d) The Illinois Department of State Police shall provide
3all equipment and instructions necessary for the collection of
4blood samples. The collection of samples shall be performed in
5a medically approved manner. Only a physician authorized to
6practice medicine, a registered nurse or other qualified person
7trained in venipuncture may withdraw blood for the purposes of
8this Act. The samples shall thereafter be forwarded to the
9Illinois Department of State Police, Division of Forensic
10Services, for analysis and categorizing into genetic marker
11groupings.
12    (d-1) The Illinois Department of State Police shall provide
13all equipment and instructions necessary for the collection of
14saliva samples under this Section. The collection of saliva
15samples shall be performed in a medically approved manner. Only
16a person trained in the instructions promulgated by the
17Illinois State Police on collecting saliva may collect saliva
18for the purposes of this Section. The samples shall thereafter
19be forwarded to the Illinois Department of State Police,
20Division of Forensic Services, for analysis and categorizing
21into genetic marker groupings.
22    (d-2) The Illinois Department of State Police shall provide
23all equipment and instructions necessary for the collection of
24tissue samples under this Section. The collection of tissue
25samples shall be performed in a medically approved manner. Only
26a person trained in the instructions promulgated by the

 

 

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1Illinois State Police on collecting tissue may collect tissue
2for the purposes of this Section. The samples shall thereafter
3be forwarded to the Illinois Department of State Police,
4Division of Forensic Services, for analysis and categorizing
5into genetic marker groupings.
6    (d-5) To the extent that funds are available, the Illinois
7Department of State Police shall contract with qualified
8personnel and certified laboratories for the collection,
9analysis, and categorization of known samples, except as
10provided in subsection (n) of this Section.
11    (d-6) Agencies designated by the Illinois Department of
12State Police and the Illinois Department of State Police may
13contract with third parties to provide for the collection or
14analysis of DNA, or both, of an offender's blood, saliva, and
15tissue samples, except as provided in subsection (n) of this
16Section.
17    (e) The genetic marker groupings shall be maintained by the
18Illinois Department of State Police, Division of Forensic
19Services.
20    (f) The genetic marker grouping analysis information
21obtained pursuant to this Act and the information obtained
22under Section 107-2.5 of the Code of Criminal Procedure of 1963
23shall be confidential and shall be released only to peace
24officers of the United States, of other states or territories,
25of the insular possessions of the United States, of foreign
26countries duly authorized to receive the same, to all peace

 

 

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1officers of the State of Illinois and to all prosecutorial
2agencies, and to defense counsel as provided by Section 116-5
3of the Code of Criminal Procedure of 1963. The genetic marker
4grouping analysis information obtained pursuant to this Act
5shall be used only for (i) valid law enforcement identification
6purposes and as required by the Federal Bureau of Investigation
7for participation in the National DNA database, (ii) technology
8validation purposes, (iii) a population statistics database,
9(iv) quality assurance purposes if personally identifying
10information is removed, (v) assisting in the defense of the
11criminally accused pursuant to Section 116-5 of the Code of
12Criminal Procedure of 1963, or (vi) identifying and assisting
13in the prosecution of a person who is suspected of committing a
14sexual assault as defined in Section 1a of the Sexual Assault
15Survivors Emergency Treatment Act. Having established the
16State DNA identification index, a match between casework
17evidence DNA samples from a criminal investigation and DNA
18samples from a State or federal DNA database of eligible
19offenders may be used only to sustain probable cause for the
20issuance of a warrant to obtain the DNA sample from an eligible
21offender for confirmation. The identification, detention,
22arrest, or conviction of a person based upon a database match
23or database information is not invalidated if it is later
24determined that the sample should not have been obtained or
25placed in the database. Notwithstanding any other statutory
26provision to the contrary, all information obtained under this

 

 

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1Section shall be maintained in a single State data base, which
2may be uploaded into a national database, and which information
3may be subject to expungement only as set forth in subsection
4(f-1).
5    (f-1) Upon receipt of a certified copy of a final court
6order for notification of a reversal of each a conviction based
7on actual innocence, or of the granting of a pardon pursuant to
8Section 12 of Article V of the Illinois Constitution, if that
9pardon document specifically states that the reason for the
10pardon is the actual innocence of an individual whose DNA
11record has been stored in the State or national DNA
12identification index in accordance with this Section by the
13Illinois Department of State Police, the DNA record for that
14conviction shall be expunged from the DNA identification index,
15and the Department shall by rule prescribe procedures to ensure
16that the record and any samples, analyses, or other documents
17relating to such record, whether in the possession or control
18of the Department or any law enforcement or police agency, or
19any forensic DNA laboratory, including any duplicates or copies
20thereof, are destroyed and a letter is sent to the court
21verifying the expungement is completed.
22    Upon receipt of a certified copy of a final court order for
23each charge against an individual, whose DNA record has been
24stored in the State or national DNA identification index in
25accordance with this Section by the Illinois Department of
26State Police, establishing that such a charge has been

 

 

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1dismissed or resulted in acquittal or that no charge was filed
2within the applicable time period, the DNA record for that
3arrest shall be expunged from the DNA identification index, and
4the Department shall by rule prescribe procedures to ensure
5that the record and any samples, analyses, or other documents
6relating to such records, in the possession or control of the
7Department are destroyed and a letter is sent to the court
8verifying the expungement is completed.
9    (f-5) Any person who intentionally uses genetic marker
10grouping analysis information, or any other information
11derived from a DNA sample, beyond the authorized uses as
12provided under this Section or under Section 107-2.5 of the
13Code of Criminal Procedure of 1963, or any other Illinois law,
14is guilty of a Class 3 4 felony, and shall be subject to a fine
15of not less than $5,000.
16    (f-6) The Illinois Department of State Police may contract
17with third parties for the purposes of implementing this
18amendatory Act of the 93rd General Assembly, except as provided
19in subsection (n) of this Section. Any other party contracting
20to carry out the functions of this Section shall be subject to
21the same restrictions and requirements of this Section insofar
22as applicable, as the Illinois Department of State Police, and
23to any additional restrictions imposed by the Illinois
24Department of State Police.
25    (g) For the purposes of this Section, "qualifying offense"
26means any of the following:

 

 

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1        (1) any violation or inchoate violation of Section
2    11-6, 11-9.1, 11-11, 11-18.1, 12-15, or 12-16 of the
3    Criminal Code of 1961;
4        (1.1) any violation or inchoate violation of Section
5    9-1, 9-2, 10-1, 10-2, 12-11, 12-11.1, 18-1, 18-2, 18-3,
6    18-4, 19-1, or 19-2 of the Criminal Code of 1961 for which
7    persons are convicted on or after July 1, 2001;
8        (2) any former statute of this State which defined a
9    felony sexual offense;
10        (3) (blank);
11        (4) any inchoate violation of Section 9-3.1, 11-9.3,
12    12-7.3, or 12-7.4 of the Criminal Code of 1961; or
13        (5) any violation or inchoate violation of Article 29D
14    of the Criminal Code of 1961.
15    (g-5) (Blank).
16    (h) The Illinois Department of State Police shall be the
17State central repository for all genetic marker grouping
18analysis information obtained pursuant to this Act. The
19Illinois Department of State Police may promulgate rules for
20the form and manner of the collection of blood, saliva, or
21tissue samples and other procedures for the operation of this
22Act. The provisions of the Administrative Review Law shall
23apply to all actions taken under the rules so promulgated.
24    (i) (1) A person required to provide a blood, saliva, or
25    tissue specimen shall cooperate with the collection of the
26    specimen and any deliberate act by that person intended to

 

 

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1    impede, delay or stop the collection of the blood, saliva,
2    or tissue specimen is a Class A misdemeanor.
3        (2) In the event that a person's DNA sample is not
4    adequate for any reason, the person shall provide another
5    DNA sample for analysis. Duly authorized law enforcement
6    and corrections personnel may employ reasonable force in
7    cases in which an individual refuses to provide a DNA
8    sample required under this Act.
9    (j) Any person sentenced and required by subsection (a) to
10submit specimens of blood, saliva, or tissue to the Illinois
11Department of State Police for analysis and categorization into
12genetic marker grouping, in addition to any other disposition,
13penalty, or fine imposed, shall pay an analysis fee of $200. If
14the analysis fee is not paid at the time of sentencing, the
15court shall establish a fee schedule by which the entire amount
16of the analysis fee shall be paid in full, such schedule not to
17exceed 24 months from the time of conviction. The inability to
18pay this analysis fee shall not be the sole ground to
19incarcerate the person.
20    (k) All analysis and categorization fees provided for by
21subsection (j) shall be regulated as follows:
22        (1) The State Offender DNA Identification System Fund
23    is hereby created as a special fund in the State Treasury.
24        (2) All fees shall be collected by the clerk of the
25    court and forwarded to the State Offender DNA
26    Identification System Fund for deposit. The clerk of the

 

 

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1    circuit court may retain the amount of $10 from each
2    collected analysis fee to offset administrative costs
3    incurred in carrying out the clerk's responsibilities
4    under this Section.
5        (3) Fees deposited into the State Offender DNA
6    Identification System Fund shall be used by Illinois State
7    Police crime laboratories as designated by the Director of
8    State Police. These funds shall be in addition to any
9    allocations made pursuant to existing laws and shall be
10    designated for the exclusive use of State crime
11    laboratories. These uses may include, but are not limited
12    to, the following:
13            (A) Costs incurred in providing analysis and
14        genetic marker categorization as required by
15        subsection (d).
16            (B) Costs incurred in maintaining genetic marker
17        groupings as required by subsection (e).
18            (C) Costs incurred in the purchase and maintenance
19        of equipment for use in performing analyses.
20            (D) Costs incurred in continuing research and
21        development of new techniques for analysis and genetic
22        marker categorization.
23            (E) Costs incurred in continuing education,
24        training, and professional development of forensic
25        scientists regularly employed by these laboratories.
26    (l) The failure of a person to provide a specimen, or of

 

 

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1any person or agency to collect a specimen, within the 45 day
2period shall in no way alter the obligation of the person to
3submit such specimen, or the authority of the Illinois
4Department of State Police or persons designated by the
5Department to collect the specimen, or the authority of the
6Illinois Department of State Police to accept, analyze and
7maintain the specimen or to maintain or upload results of
8genetic marker grouping analysis information into a State or
9national database.
10    (m) If any provision of Public Act 93-216 this amendatory
11Act of the 93rd General Assembly is held unconstitutional or
12otherwise invalid, the remainder of Public Act 93-216 this
13amendatory Act of the 93rd General Assembly is not affected.
14    (n) Neither the Department of State Police, the Division of
15Forensic Services, nor any laboratory of the Division of
16Forensic Services may contract out forensic testing for the
17purpose of an active investigation or a matter pending before a
18court of competent jurisdiction without the written consent of
19the prosecuting agency. For the purposes of this subsection
20(n), "forensic testing" includes the analysis of physical
21evidence in an investigation or other proceeding for the
22prosecution of a violation of the Criminal Code of 1961 or for
23matters adjudicated under the Juvenile Court Act of 1987, and
24includes the use of forensic databases and databanks, including
25DNA, firearm, and fingerprint databases, and expert testimony.
26    (o) If any provision of this amendatory Act of the 97th

 

 

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1General Assembly is held unconstitutional or otherwise
2invalid, the remainder of this amendatory Act of the 97th
3General Assembly is not affected.
4(Source: P.A. 96-426, eff. 8-13-09; 96-642, eff. 8-24-09;
596-1000, eff. 7-2-10.)
 
6    Section 99. Effective date. This Act takes effect upon
7becoming law.