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Criminal Investigations (Bodily Samples) Act 1995

DNA profile databank - Obtaining bodily sample by consent

37: Withdrawal of consent suspended

You could also call this:

"What happens when you change your mind about giving a bodily sample"

Illustration for Criminal Investigations (Bodily Samples) Act 1995

If you withdraw your consent to a bodily sample, it might not take effect right away. This can happen if you have been asked to give a sample and you haven’t refused, or if you have agreed but the sample hasn’t been taken yet. It can also happen if the police are thinking about asking you for a sample, or if they have already asked you and are waiting for an answer. If the police are thinking about asking you for a sample, they have 14 days to do so after you withdraw your consent. If they don’t ask you within that time, your withdrawal of consent will take effect. But if they do ask you, and you give a sample, then your withdrawal of consent won’t take effect until after the sample has been taken. In some cases, the police might need to get a special order to take a sample from you. If this happens, your withdrawal of consent won’t take effect until the order has been sorted out. You can find more information about this in section 36(1) and section 38. If the police have already gotten a special order to take a sample from you, but they haven’t taken it yet, your withdrawal of consent won’t take effect until they have taken the sample. But if they can’t take the sample for some reason, then section 38 will apply. You should look at section 13 for more information about special orders. Remember, the rules about withdrawing consent are complicated, so make sure you understand what’s happening.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM369280.

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36: Withdrawal of consent after sample taken, or

"Withdrawing consent for a bodily sample after it's been taken"

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"What happens to your bodily sample if you change your mind about giving it"

Part 3DNA profile databank
Obtaining bodily sample by consent

37Withdrawal of consent suspended

  1. Where,—

  2. pursuant to section 36(1), any person withdraws that person’s consent to the use of a bodily sample; and
    1. at the time of the withdrawal of that consent,—
      1. a suspect request has been made to that person, and either that person has not refused to consent to the taking of a bodily sample in response to that request, or that person has consented to the taking of such a sample, but the sample has not yet been obtained; or
        1. the making of a suspect request to that person is reasonably in contemplation; or
          1. proceedings on an application under section 13 in respect of that person are pending; or
            1. the making of such an application is reasonably in contemplation; or
              1. a suspect compulsion order is in force in respect of that person, but a bodily sample has yet to be obtained from him or her in accordance with that order,—
                2. then, notwithstanding anything in section 36(1), the bodily sample in respect of which that consent is withdrawn, and any information derived from any analysis of that sample, may be retained, and shall be dealt with in accordance with this section and section 38.

              2. Where, at the time of the withdrawal of the consent, subsection (1)(b)(i) applies, the following provisions shall apply:

              3. if a bodily sample is obtained from the person in response to the suspect request, the withdrawal of consent shall take effect in accordance with section 36(1):
                1. if for any reason no bodily sample is obtained from the person in response to the suspect request within the period of 28 days after notice of the withdrawal of consent is received by the Commissioner, then, subject to paragraph (c) of this subsection, the withdrawal of consent shall take effect, in accordance with section 36(1), on the expiry of that period:
                  1. if, before the expiry of the period referred to in paragraph (b), an application is made under section 13 in respect of the person, subsection (4) of this section shall thereafter apply as if, at the time of the withdrawal of the consent, subsection (1)(b)(iii) of this section applied.

                    1. Where, at the time of the withdrawal of the consent, subsection (1)(b)(ii) applies, the following provisions shall apply:

                    2. if a suspect request is not made to the person within the period of 14 days after notice of the withdrawal of consent is received by the Commissioner, the withdrawal of consent shall take effect, in accordance with section 36(1), on the expiry of that period:
                      1. if,—the withdrawal of consent shall take effect in accordance with section 36(1):
                        1. before the expiry of the period referred to in paragraph (a), a suspect request is made to the person; and
                          1. a bodily sample is obtained from the person in response to the suspect request,—
                          2. if,—then, subject to paragraph (d), the withdrawal of consent shall take effect, in accordance with section 36(1), on the expiry of that period of 28 days:
                            1. before the expiry of the period referred to in paragraph (a), a suspect request is made to the person; but
                              1. for any reason no bodily sample is obtained from the person in response to the suspect request within the period of 28 days after the making of the suspect request,—
                              2. if, before the expiry of the period referred to in paragraph (c)(ii), an application is made under section 13 in respect of the person, subsection (4) of this section shall thereafter apply as if, at the time of the withdrawal of the consent, subsection (1)(b)(iii) of this section applied.

                                1. Where, at the time of the withdrawal of the consent, subsection (1)(b)(iii) applies, the following provisions shall apply:

                                2. if—then the withdrawal of consent shall take effect, in accordance with section 36(1), on the expiry of that period:
                                  1. the application for a suspect compulsion order (in this subsection referred to as the initial application) is withdrawn or refused; and
                                    1. no further application for a suspect compulsion order is made in respect of the person within the period of 28 days after the withdrawal or refusal of the application,—
                                    2. if—then the withdrawal of consent shall take effect in accordance with section 36(1):
                                      1. the initial application is granted; and
                                        1. a bodily sample is obtained from the person in accordance with the suspect compulsion order,—
                                        2. if—then section 38 shall apply:
                                          1. the initial application is granted; but
                                            1. for any reason, no bodily sample is obtained from the person in accordance with the suspect compulsion order,—
                                            2. if—then,—
                                              1. the initial application is withdrawn or refused; and
                                                1. a further application for a suspect compulsion order is made in respect of the person within the period of 28 days after the withdrawal or, as the case requires, the refusal of the initial application,—
                                                  1. if that further application is withdrawn or refused, the withdrawal of consent shall take effect in accordance with section 36(1):
                                                    1. if that further application is granted, paragraphs (b) and (c) shall apply as if that application were the initial application.

                                                    2. Where, at the time of the withdrawal of the consent, subsection (1)(b)(iv) applies, the following provisions shall apply:

                                                    3. if no application is made under section 13 in respect of the person within the period of 28 days after notice of the withdrawal of consent is received by the Commissioner, the withdrawal of consent shall take effect in accordance with section 36(1):
                                                      1. if, before the expiry of the period referred to in paragraph (a), an application is made under section 13 in respect of the person, subsection (4) of this section shall thereafter apply as if, at the time of the withdrawal of the consent, subsection (1)(b)(iii) of this section applied.

                                                        1. Where, at the time of the withdrawal of the consent, subsection (1)(b)(v) applies, the following provisions shall apply:

                                                        2. if a bodily sample is obtained from the person in accordance with the suspect compulsion order, the withdrawal of the consent shall take effect in accordance with section 36(1):
                                                          1. if, for any reason, no bodily sample is obtained from the person in accordance with the suspect compulsion order, then section 38 shall apply.

                                                            Notes
                                                            • Section 37(1): amended, on , by section 6 of the Criminal Investigations (Bodily Samples) Amendment Act 2003 (2003 No 113).
                                                            • Section 37(1)(a): amended, on , by section 6 of the Criminal Investigations (Bodily Samples) Amendment Act 2003 (2003 No 113).
                                                            • Section 37(1)(b)(i): amended, on , by section 6 of the Criminal Investigations (Bodily Samples) Amendment Act 2003 (2003 No 113).
                                                            • Section 37(1)(b)(v): amended, on , by section 6 of the Criminal Investigations (Bodily Samples) Amendment Act 2003 (2003 No 113).
                                                            • Section 37(2)(a): amended, on , by section 6 of the Criminal Investigations (Bodily Samples) Amendment Act 2003 (2003 No 113).
                                                            • Section 37(2)(b): amended, on , by section 6 of the Criminal Investigations (Bodily Samples) Amendment Act 2003 (2003 No 113).
                                                            • Section 37(3)(b)(ii): amended, on , by section 6 of the Criminal Investigations (Bodily Samples) Amendment Act 2003 (2003 No 113).
                                                            • Section 37(3)(c)(ii): amended, on , by section 6 of the Criminal Investigations (Bodily Samples) Amendment Act 2003 (2003 No 113).
                                                            • Section 37(4)(b)(ii): amended, on , by section 6 of the Criminal Investigations (Bodily Samples) Amendment Act 2003 (2003 No 113).
                                                            • Section 37(4)(c)(ii): amended, on , by section 6 of the Criminal Investigations (Bodily Samples) Amendment Act 2003 (2003 No 113).
                                                            • Section 37(6)(a): amended, on , by section 6 of the Criminal Investigations (Bodily Samples) Amendment Act 2003 (2003 No 113).
                                                            • Section 37(6)(b): amended, on , by section 6 of the Criminal Investigations (Bodily Samples) Amendment Act 2003 (2003 No 113).