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AttyDort
AttyDort, Litigation Attorney
Category: Criminal Law
Satisfied Customers: 96
Experience:  Criminal and Civil jury trial expeirence; 17 yrs exp in state and federal courts.
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If i have submitted dna in a rape case and the sheriff

Customer Question

if i have submitted dna in a rape case and the sheriff refuses to release the dna to me after they have decided they are not going to have the dna tested or pursue the case, can i get the dna back? The sheriff won't give it. The d.a. says there may be some rule that "biological material" cannot be released to someone. This is my dna rape kit that I submitted at a hospital in las vegas. The county of clark insisted on paying for the er visit and tests. they wouldn't take my insurance. if i want to pursue a case civilly shouldn't i be allowed the dna?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  AttyDort replied 1 year ago.

If you pursue the case in civil court, you will have the right to subpoena evidence from anyone who has it, including the hospital or sheriff. This is a common issue. Generally speaking, the proper procedure is to send the holder of the evidence a "Notice of Imminent Litigation and Demand for Preservation of Evidence", which would put them on notice you need that evidence for a court case. Then, once the lawsuit is filed, use a subpoena to not only get the rape kit, but also the testimony of all the people involved in collection and testing.

It may be correct that you cannot just get it by request. But I am 100% sure that a litigant in a civil suit (including the defendant) can get that evidence by subpoena.

There is a process that would allow the hospital to challenge the subpoena, or to ask for a "sealing of the evidence". However, if you are suing in civil court for rape (sexual assault) and there is a rape kit at the hospital, all of the litigants have a right to it.

An attorney you hire to conduct the lawsuit will know how to issue that subpoena.

Can you do it alone without an attorney during a lawsuit you bring yourself? Possible, but complicated.

Follow up questions?

Expert:  AttyDort replied 1 year ago.

It does not matter what state the case is in. In all civil courts in the US, the litigants have the power to use the subpoena power to compel the production of relevant evidence.

Customer: replied 1 year ago.
The sheriff alone has the kit. It has already been relinquished by the hospital. The reason I need to have it analyzed privately is that I am not even sure if there is enough DNA there to determine anything. So, it would be highly dangerous for me to do anything until I have tested the evidence someway. The DA would do it that way, why shouldn't I be allowed to. Certainly, a DA is not going to file a case first, then see if the evidence is sufficient. That is why I asked for it personally. This was a case where date rape drugs were used and I did not even know the assault had happened until the morning after when I noticed the evidence. This phenomena has happened before, but this time it was so obvious, I couldn't ignore it. The assault happened during Friday night. I noticed evidence Sat. morning, but wasn't sure, and, did not go to the hospital until Monday, because no local hospital where I lived would do the tests. I had to go to Las Vegas hospital.
Expert:  AttyDort replied 1 year ago.

There is no way for you to force the sheriff to give you that evidence unless you use a subpoena. It is possible to file a civil lawsuit and start the process of collecting evidence without serving the lawsuit on the defendant.

That's all I can really say. If you request and they say "no", a subpoena is your only choice. The only way you can get subpoena power is by filing a lawsuit.

I hope that helps.

Expert:  AttyDort replied 1 year ago.

Once you get hold of it, you can have your own independent expert do the testing.

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