39. (1) Where a sample taken from a former offender under section 34 proves to be insufficient, a member of the Garda Síochána may, within a period of not more than 6 months from the taking of the sample, request him or her to have a second sample under that section taken from him or her.

(2) A member of the Garda Síochána who makes a request under subsection (1) shall indicate to the former offender concerned that if he or she does not comply with the request that an application may be made to a judge of the District Court under subsection (4) for an order to authorise the sending of a notice under that subsection to him or her.

(3) If a former offender of whom a request is made under subsection (1) does not comply with the request, an application may be made under subsection (4).

(4) Subject to subsections (5) and (6), a judge of the District Court may, on an application in that behalf by a member of the Garda Síochána not below the rank of superintendent, make an order authorising the Garda Síochána to send a notice to a former offender requiring him or her to attend at a named Garda Síochána station on a day, and at a time of day or between times of day, specified in the notice for the purpose of having a second sample under section 34 taken from him or her.

(5) A judge of the District Court shall not make an order under subsection (4) unless he or she is satisfied that—

(a) either—

(i) if an order was not made under section 34(6), the person concerned is a former offender, or

(ii) an order was made by a judge of the District Court under subsection (6) of section 34 authorising the sending of a notice under that subsection to the former offender concerned requiring him or her to attend at a named Garda Síochána station for the purpose of having a sample under that section taken from him or her,

(b) the first sample concerned was taken from the former offender concerned in accordance with section 34,

(c) that sample has proved to be insufficient, and

(d) it is in the interests of justice in all the circumstances of the case to make the order under subsection (4).

(6) An order under subsection (4) —

(a) in the case of any former offender, may be made on one occasion only, and

(b) in the case of a former offender who falls under section 33(1)(b), may not be made if a second sample has been taken from him or her in accordance with section 38.

(7) If an order is made under subsection (4), a notice under that subsection may be sent by a member of the Garda Síochána to the former offender concerned.

(8) A notice under subsection (4) shall, in the case of a child, also be sent to a parent or guardian of the child and, if the member of the Garda Síochána sending the notice knows or believes that the former offender to whom the notice is being sent is a protected person, the member shall also send the notice to a parent or guardian of the person.

(9) Nothing in this section shall require the second sample to be taken from a former offender in accordance with this section to be of the same type of biological material as the first sample taken from him or her which proved to be insufficient, provided that the second sample is one that is permitted to be taken under this Part.

(10) A sample taken from a former offender in accordance with this section shall, for the purposes of this Act, be regarded as if it had been taken from the former offender under section 34.

(11) Subject to subsection (12), a person who fails or refuses, without reasonable cause, to comply with a notice under subsection (4) shall be guilty of an offence and shall be liable on summary conviction—

(a) if the person is not a child, to a class A fine or imprisonment for a term not exceeding 12 months or both, and

(b) if the person is a child, to a class C fine or detention for a period not exceeding 6 months or both.

(12) It shall be a defence in proceedings for an offence under subsection (11) for the person charged with the offence to show that he or she is not a former offender.