# 28 C.F.R. § 28.25 (2026): Exceptions based on a defendant's conduct

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/CFR_T28_P28_S28_25

## Section

- **Citation:** 28 C.F.R. § 28.25 (2026)
- **Heading:** Exceptions based on a defendant's conduct
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Title 28 CFR: Judicial Administration / Chapter I: DEPARTMENT OF JUSTICE / Part 28: DNA IDENTIFICATION SYSTEM / Subpart C: Preservation of Biological Evidence / § 28.25: § 28.25   Exceptions based on a defendant's conduct.

## Text

Subsection (c) of section 3600A makes the biological evidence preservation requirement inapplicable in two circumstances relating to action (or inaction) by the defendant:
(a)
Waiver by defendant.
Section 3600A(c)(2) makes the biological evidence preservation requirement inapplicable if the defendant knowingly and voluntarily waived DNA testing in a court proceeding conducted after the date of enactment,
i.e.
, after October 30, 2004. Hence, for example, if a defendant waives DNA testing in the context of a plea agreement, in a pretrial colloquy with the court, in the course of discovery in pretrial proceedings, or in a postconviction proceeding, and the proceeding in which the waiver occurs takes place after October 30, 2004, the biological evidence preservation requirement of section 3600A does not apply.
(b)
Notice to defendant.
(1) Section 3600A(c)(3) makes the biological evidence preservation requirement inapplicable if the defendant is notified that the biological evidence may be destroyed “after a conviction becomes final and the defendant has exhausted all opportunities for direct review of the conviction,” and “the defendant does not file a motion under section 3600 within 180 days of receipt of the notice.”
(2) Effective notice concerning the possible destruction of biological evidence for purposes of section 3600A(c)(3) cannot be given if the case is pending on direct review of the conviction before a court of appeals or the Supreme Court, if time remains for the defendant to file a notice of appeal from the judgment of conviction in the court of appeals, or if time remains for the defendant to file a petition for certiorari to the Supreme Court following the court of appeals' determination of an appeal of the conviction.
given if the case is pending on direct review of the conviction before a court of appeals or the Supreme Court, if time remains for the defendant to file a notice of appeal from the judgment of conviction in the court of appeals, or if time remains for the defendant to file a petition for certiorari to the Supreme Court following the court of appeals' determination of an appeal of the conviction.
(3) Once direct review has been completed, or the time for seeking direct review has expired, section 3600A(c)(3) allows notice to the defendant that biological evidence may be destroyed. The biological evidence preservation requirement of section 3600A thereafter does not apply, unless the defendant files a motion under 18 U.S.C. 3600 within 180 days of receipt of the notice. Notice to a defendant that biological evidence may be destroyed may be provided by certified mail, and the Federal Bureau of Prisons shall create a record concerning the delivery of such mail to an inmate. To determine whether a defendant has filed a motion under 18 U.S.C. 3600 within 180 days of receipt of such a notice, the agency providing the notice may obtain confirmation of delivery and the date of delivery by inquiry with the Federal Bureau of Prisons, and may ascertain whether the defendant has filed a motion under 18 U.S.C. 3600 within 180 days of that date by checking the records of the district court which entered the judgment of conviction of the defendant for the offense or asking the United States Attorney's office in that district.

## Nearby sections

- [28 C.F.R. § 28.21 (2026) § 28.21   Purpose.](https://www.frixlaw.com/law-library/statutes/CFR_T28_P28_S28_21.md)
- [28 C.F.R. § 28.22 (2026) § 28.22   The requirement to preserve biological evidence.](https://www.frixlaw.com/law-library/statutes/CFR_T28_P28_S28_22.md)
- [28 C.F.R. § 28.23 (2026) § 28.23   Evidence subject to the preservation requirement.](https://www.frixlaw.com/law-library/statutes/CFR_T28_P28_S28_23.md)
- [28 C.F.R. § 28.24 (2026) § 28.24   Exceptions based on the results of judicial proceedings.](https://www.frixlaw.com/law-library/statutes/CFR_T28_P28_S28_24.md)
- [28 C.F.R. § 28.25 (2026) § 28.25   Exceptions based on a defendant's conduct.](https://www.frixlaw.com/law-library/statutes/CFR_T28_P28_S28_25.md)
- [28 C.F.R. § 28.26 (2026) § 28.26   Exceptions based on the nature of the evidence.](https://www.frixlaw.com/law-library/statutes/CFR_T28_P28_S28_26.md)
- [28 C.F.R. § 28.27 (2026) § 28.27   Non-preemption of other requirements.](https://www.frixlaw.com/law-library/statutes/CFR_T28_P28_S28_27.md)
- [28 C.F.R. § 28.28 (2026) § 28.28   Sanctions for violations.](https://www.frixlaw.com/law-library/statutes/CFR_T28_P28_S28_28.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/CFR_T28_P28_S28_25. Check the current official text before relying on it. Not legal advice.