Nebraska § 29-4106 - Person subject to DNA sample; payment of costs.

§ 29-4106. Person subject to DNA sample; payment of costs.

(1) A person who is convicted of a felony offense or other specified offense on or after July 15, 2010, who does not have a DNA sample available for use in the State DNA Sample Bank, shall, at his or her own expense, have a DNA sample collected:

(a) Upon intake to a prison, jail, or other detention facility or institution to which such person is sentenced. If the person is already confined at the time of sentencing, the person shall have a DNA sample collected immediately after the sentencing. Such DNA sample shall be collected at the place of incarceration or confinement. Such person shall not be released unless and until a DNA sample has been collected; or

(b) As a condition for any sentence which will not involve an intake into a prison, jail, or other detention facility or institution. Such DNA samples shall be collected as follows:

(i) In any county containing a city of the metropolitan class, a person placed on probation or who received a penalty of a fine or time served shall have such DNA sample collected by a probation officer at a probation office. Such person shall not be released unless and until a DNA sample has been collected; and

(ii) In all other counties, a person placed on probation shall have such DNA sample collected by a probation officer at a probation office, and a person not placed on probation who receives a penalty of a fine or time served shall have such DNA sample collected by the county sheriff. Such person shall not be released unless and until a DNA sample has been collected.

(2) A person who has been convicted of a felony offense or other specified offense before July 15, 2010, who does not have a DNA sample available for use in the State DNA Sample Bank, and who is still serving a term of confinement or probation for such felony offense or other specified offense on July 15, 2010, shall not be released prior to the expiration of his or her maximum term of confinement or revocation or discharge from his or her probation unless and until a DNA sample has been collected.

(3) A person who is serving a term of probation and has a DNA sample collected pursuant to this section shall pay all costs associated with the collection of the DNA sample.

(4) If the court waives the cost of taking a DNA sample for any reason, a county jail or other county detention facility or institution collecting the DNA sample shall not be held financially responsible for the cost of the DNA sample kit.

The requirement for a convicted felon to provide a DNA sample pursuant to subdivision (1)(a) of this section exists once the convicted felon begins serving his or her sentence. State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).

This section inherently authorizes the use of reasonable force to collect a DNA sample from a convicted felon. State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).

The retroactive application of subsection (2) of this section leading to the forfeiture of past and future good time for the failure to provide a DNA sample is a violation of the Ex Post Facto Clauses of the U.S. and Nebraska Constitutions. Shepard v. Houston, 289 Neb. 399, 855 N.W.2d 559 (2014).