Vermont § 1935 - Procedure if person refuses to give sample

§ 1935. Procedure if person refuses to give sample

• (a) If a person who is required to provide a DNA sample under this subchapter refuses
  to provide the sample, the Commissioner of the Department of Corrections or of Public
  Safety shall file a motion in the Superior Court for an order requiring the person
  to provide the sample. (b) The person who refuses to provide a DNA sample shall be served with a copy of the
  motion and shall be entitled to a hearing by the court, limited in scope solely to
  the issues described in subsection (c) of this section. (c) If the court finds that the person who refused to provide a DNA sample is a person
  required by section 1933 of this subchapter to provide a DNA sample, the court shall
  issue a written order requiring the person to provide the DNA sample in accordance
  with the provisions of this subchapter. The court’s order shall also specify the manner
  by which the DNA sample shall be obtained and may authorize law enforcement and correctional
  personnel to employ reasonable force to obtain the DNA sample. No such employee or
  health care professional shall be criminally or civilly liable for the use of reasonable
  force. (d) If the court finds that the person who refused to provide a DNA sample is not a person
  required by section 1933 of this subchapter to provide a DNA sample, the court shall
  issue a written order relieving the person of the obligation to provide a DNA sample. (e) If the Supreme Court reverses a determination that a DNA sample shall be provided,
  the Department shall destroy the DNA sample and expunge the DNA record as provided
  in section 1940 of this subchapter. (f) Venue for proceedings under this section shall be in the territorial unit of the Superior
  Court where the conviction occurred. Hearings under this section shall be conducted
  by the Superior Court without a jury and shall be subject to the Vermont Rules of
  Civil Procedure as consistent with this section. The State has the burden of proof
  by a preponderance of the evidence. Affidavits of witnesses shall be admissible evidence
  that may be rebutted by witnesses called by either party. The affidavits shall be
  delivered to the other party at least five days prior to the hearing. (g) A decision of the Superior Court under this section may be appealed as a matter of
  right to the Supreme Court. The court’s order shall not be stayed pending appeal unless
  the respondent is reasonably likely to prevail on appeal. (Added 1997, No. 160 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2009, No. 154 (Adj. Sess.), § 158.)