38. (1) Where a sample taken from an offender under section 31 proves to be insufficient, a second such sample may be taken from him or her in accordance with this section before the expiry of the sentence concerned or, if the offender is a sex offender, before the end of the notification period.

(2) Where a sample taken from a child offender under section 32 proves to be insufficient, a second such sample may be taken from him or her in accordance with this section before the expiry of the sentence concerned or, if the child offender is a sex offender, before the end of the notification period.

(3) If an offender is in prison, a prison officer may take, or cause to be taken, a second sample under section 31 from the offender in accordance with that section only if, subject to section 3(6) and subsection (6), an authorisation to take the second sample is given under section 31(5).

(4) If a child offender is in a children detention school or a place of detention, an authorised member of the staff of the children detention school or a prison officer of the place of detention may take, or cause to be taken, a second sample under section 32 from the child offender in accordance with that section only if, subject to section 3(6) and subsection (6), an authorisation to take the second sample is given under section 32(5).

(5) If at the time a sample taken from a child offender under section 32 proves to be insufficient, he or she is in prison, a prison officer may take, or cause to be taken, a second sample from him or her in accordance with section 31 only if, subject to section 3(6) and subsection (6), an authorisation to take the second sample is given under section 31(5).

(6) An authorisation under section 31(5) or 32(5) to take a second sample from an offender referred to in subsection (3), or a child offender referred to in subsection (4) or (5), as the case may be, may be given on one occasion only.

(7) If an offender is not in prison, a second sample under section 31 may be taken from him or her in accordance with that section only if—

(a) a member of the Garda Síochána not below the rank of inspector authorises it to be taken, and

(b) the offender attends at a Garda Síochána station in accordance with this section for the purpose of having the second sample taken from him or her.

(8) Subject to subsection (5), if a child offender is not detained in a children detention school or a place of detention, a second sample under section 32 may be taken from him or her in accordance with that section only if—

(a) a member of the Garda Síochána not below the rank of inspector authorises it to be taken, and

(b) the child offender attends at a Garda Síochána station in accordance with this section for the purpose of having the second sample taken from him or her.

(9) An authorisation under subsection (7)(a) or (8)(a) to take a second sample from an offender or a child offender in accordance with subsection (7) or (8), as the case may be—

(a) may be given on one occasion only, and

(b) may not be given if a period of more than 6 months has elapsed since the first sample concerned was taken from the offender or child offender concerned.

(10) If an authorisation under subsection (7)(a) or (8)(a) to take a second sample from an offender or a child offender has been given, a member of the Garda Síochána may require the offender or child offender, as the case may be, by notice in writing to attend at a specified Garda Síochána station within the period specified in subsection (12)(a) for the purpose of having a second sample taken from him or her.

(11) A notice under subsection (10) 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 knows or believes that the person 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.

(12) A notice under subsection (10) shall state that the first sample concerned taken from the offender or child offender concerned has proved to be insufficient, and a requirement in the notice to attend at a specified Garda Síochána station—

(a) shall give the offender or child offender concerned a period of not less than 10 working days within which he or she shall so attend, and

(b) may direct the offender or child offender concerned to so attend on specified days and at a specified time of day or between specified times of day.

(13) An offender or a child offender who fails or refuses, without reasonable cause, to comply with a notice under subsection (10), shall be guilty of an offence and shall be liable on summary conviction—

(a) in the case of an offender, to a class A fine or imprisonment for a term not exceeding 12 months or both, and

(b) in the case of a child offender, to a class C fine or detention for a period not exceeding 6 months or both.

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

(15) A sample taken from an offender or a child offender in accordance with this section shall, for the purposes of this Act, be regarded as if it had been taken from the offender or child offender under section 31 or 32, as may be appropriate.

(16) In this section references to a child offender in relation to the taking of a second sample from him or her shall include references to a person who is no longer a child at the time the first sample taken from him or her proves to be insufficient.

(17) In this section—

“the end of the notification period”, in relation to an offender or a child offender who is a sex offender, means the end of the period for which he or she is subject to the requirements of Part 2 of the Sex Offenders Act 2001;

“the expiry of the sentence” —

(a) in relation to an offender other than a sex offender, has the meaning it has in section 31, and

(b) in relation to a child offender other than a sex offender, has the meaning it has in section 32.