Bill Text: CA AB1492 | 2015-2016 | Regular Session | Chaptered
Bill Title: Forensic testing: DNA samples.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2015-10-04 - Chaptered by Secretary of State - Chapter 487, Statutes of 2015. [AB1492 Detail]
Download: California-2015-AB1492-Chaptered.html
BILL NUMBER: AB 1492 CHAPTERED
BILL TEXT
CHAPTER 487
FILED WITH SECRETARY OF STATE OCTOBER 4, 2015
APPROVED BY GOVERNOR OCTOBER 4, 2015
PASSED THE SENATE SEPTEMBER 10, 2015
PASSED THE ASSEMBLY SEPTEMBER 11, 2015
AMENDED IN SENATE SEPTEMBER 4, 2015
AMENDED IN SENATE AUGUST 31, 2015
AMENDED IN SENATE JULY 16, 2015
AMENDED IN SENATE JUNE 29, 2015
AMENDED IN ASSEMBLY APRIL 30, 2015
AMENDED IN ASSEMBLY APRIL 15, 2015
AMENDED IN ASSEMBLY MARCH 26, 2015
INTRODUCED BY Assembly Member Gatto
(Coauthor: Assembly Member Atkins)
FEBRUARY 27, 2015
An act to amend and add Sections 298 and 299 of the Penal Code,
relating to DNA samples.
LEGISLATIVE COUNSEL'S DIGEST
AB 1492, Gatto. Forensic testing: DNA samples.
(1) Existing law, as amended by the DNA Fingerprint, Unsolved
Crime and Innocence Protection Act, Proposition 69, approved by the
voters at the November 2, 2004, general election (the DNA Act)
requires any adult person who is arrested or charged with any felony
offense to provide buccal swab samples, right thumbprints, and a full
palm print impression of each hand, and any blood specimens or other
biological samples required for law enforcement identification
analysis. Existing law requires that blood specimens and buccal swab
samples be forwarded promptly to the Department of Justice for
analysis. Existing case law, People v. Buza (2014) 231 Cal.App.4th
1446, for which review has been granted by the California Supreme
Court, holds that the DNA Act, to the extent it requires felony
arrestees to submit to a DNA sample for law enforcement analysis and
inclusion in the state and federal DNA databases, without independent
suspicion, a warrant, or a judicial or grand jury determination of
probable cause, unreasonably intrudes on the arrestee's expectation
of privacy and is invalid under the California Constitution. The DNA
Act provides that it may be amended by a statute passed by each house
of the Legislature that furthers the purpose of the measure.
This bill would state that it is the intention of the Legislature
to further the purposes of the DNA Act in light of the
above-specified case law. The bill would, if the California Supreme
Court rules to uphold People v. Buza, require that a blood specimen
or buccal swab sample taken from a person arrested for the commission
of a felony be forwarded to the department after a felony arrest
warrant has been signed by a judicial officer, a grand jury
indictment has been found and issued, or a judicial determination of
probable cause to believe the person has committed the offense for
which he or she was arrested has been made.
(2) Existing law, as amended by the DNA Act, requires that a DNA
specimen and sample be destroyed and that a searchable database
profile be expunged from that databank program if the person from
whom the specimen or sample was collected has no past or present
offense or pending charge which qualifies that person for inclusion
in the database and if that person submits an application, as
specified. Existing law gives the court discretion to grant or deny
the application.
This bill would, if the California Supreme Court rules to uphold
People v. Buza, require the DNA specimen and sample to be destroyed
and the searchable database profile expunged from the database
without the requirement of an application.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of the Legislature to limit the
analysis of buccal swab samples and blood samples taken from felony
arrestees for purposes of DNA analysis only to the extent required by
the decision in People v. Buza, and to further the purposes of the
DNA Fingerprint, Unsolved Crime and Innocence Protection Act,
Proposition 69, approved by the voters at the November 2, 2004,
statewide general election, in light of that decision.
SEC. 2. Section 298 of the Penal Code is amended to read:
298. (a) The Secretary of the Department of Corrections and
Rehabilitation, or the Chief Administrative Officer of the detention
facility, jail, or other facility at which the blood specimens,
buccal swab samples, and thumb and palm print impressions were
collected shall cause these specimens, samples, and print impressions
to be forwarded promptly to the Department of Justice. The
specimens, samples, and print impressions shall be collected by a
person using a Department of Justice approved collection kit and in
accordance with the requirements and procedures set forth in
subdivision (b).
(b) (1) The Department of Justice shall provide all blood specimen
vials, buccal swab collectors, mailing tubes, labels, and
instructions for the collection of the blood specimens, buccal swab
samples, and thumbprints. The specimens, samples, and thumbprints
shall thereafter be forwarded to the DNA Laboratory of the Department
of Justice for analysis of DNA and other forensic identification
markers.
Additionally, the Department of Justice shall provide all full
palm print cards, mailing envelopes, and instructions for the
collection of full palm prints. The full palm prints, on a form
prescribed by the Department of Justice, shall thereafter be
forwarded to the Department of Justice for maintenance in a file for
identification purposes.
(2) The withdrawal of blood shall be performed in a medically
approved manner. Only health care providers trained and certified to
draw blood may withdraw the blood specimens for purposes of this
section.
(3) Buccal swab samples may be procured by law enforcement or
corrections personnel or other individuals trained to assist in
buccal swab collection.
(4) Right thumbprints and a full palm print impression of each
hand shall be taken on forms prescribed by the Department of Justice.
The palm print forms shall be forwarded to and maintained by the
Bureau of Criminal Identification and Information of the Department
of Justice. Right thumbprints also shall be taken at the time of the
collection of samples and specimens and shall be placed on the sample
and specimen containers and forms as directed by the Department of
Justice. The samples, specimens, and forms shall be forwarded to and
maintained by the DNA Laboratory of the Department of Justice.
(5) The law enforcement or custodial agency collecting specimens,
samples, or print impressions is responsible for confirming that the
person qualifies for entry into the Department of Justice DNA
Database and Databank Program prior to collecting the specimens,
samples, or print impressions pursuant to this chapter.
(6) The DNA Laboratory of the Department of Justice is responsible
for establishing procedures for entering databank and database
information.
(c) (1) Persons authorized to draw blood or obtain samples or
print impressions under this chapter for the databank or database
shall not be civilly or criminally liable either for withdrawing
blood when done in accordance with medically accepted procedures, or
for obtaining buccal swab samples by scraping inner cheek cells of
the mouth, or thumb or palm print impressions when performed in
accordance with standard professional practices.
(2) There is no civil or criminal cause of action against any law
enforcement agency or the Department of Justice, or any employee
thereof, for a mistake in confirming a person's or sample's
qualifying status for inclusion within the database or databank or in
placing an entry in a databank or a database.
(3) The failure of the Department of Justice or local law
enforcement to comply with Article 4 or any other provision of this
chapter shall not invalidate an arrest, plea, conviction, or
disposition.
(d) This section shall become inoperative if the California
Supreme Court rules to uphold the California Court of Appeal decision
in People v. Buza (2014) 231 Cal.App.4th 1446 in regard to the
provisions of Section 298 of the Penal Code, as amended by Section 6
of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act,
Proposition 69, approved by the voters at the November 2, 2004,
statewide general election, in which case this section shall become
inoperative immediately upon that ruling becoming final.
SEC. 3. Section 298 is added to the Penal Code, to read:
298. (a) (1) (A) The Secretary of the Department of Corrections
and Rehabilitation, or the Chief Administrative Officer of the
detention facility, jail, or other facility at which the blood
specimens, buccal swab samples, and thumb and palm print impressions
were collected shall cause these specimens, samples, and print
impressions to be forwarded promptly to the Department of Justice,
except that a blood specimen or buccal swab sample taken from a
person arrested for the commission of a felony as specified in
paragraph (2) of subdivision (a) of Section 296 shall be forwarded to
the Department of Justice only after one of the following has
occurred, which shall be deemed a finding of probable cause,
whichever occurs first:
(i) A felony arrest warrant has been signed by a judicial officer
pursuant to Section 813 or 817.
(ii) A grand jury indictment has been found and issued pursuant to
Section 939.8, 940, or 944.
(iii) A judicial officer has determined that probable cause exists
to believe the person has committed the offense for which he or she
was arrested.
(B) The specimens, samples, and print impressions shall be
collected by a person using a Department of Justice approved
collection kit and in accordance with the requirements and procedures
set forth in subdivision (b).
(2) A blood specimen or buccal swab sample taken from a person
arrested for the commission of a felony as specified in paragraph (2)
of subdivision (a) of Section 296 that has not been forwarded to the
Department of Justice within six months following the arrest of that
person because the agency that took the blood specimen or buccal
swab sample has not received notice to forward the DNA specimen or
sample to the Department of Justice for inclusion in the state's DNA
and Forensic Identification Database and Databank Program pursuant to
paragraph (1) following a determination of probable cause, shall be
destroyed by the agency that collected the blood specimen or buccal
swab sample.
(b) (1) The Department of Justice shall provide all blood specimen
vials, buccal swab collectors, mailing tubes, labels, and
instructions for the collection of the blood specimens, buccal swab
samples, and thumbprints. The specimens, samples, and thumbprints
shall thereafter be forwarded to the DNA Laboratory of the Department
of Justice for analysis of DNA and other forensic identification
markers.
Additionally, the Department of Justice shall provide all full
palm print cards, mailing envelopes, and instructions for the
collection of full palm prints. The full palm prints, on a form
prescribed by the Department of Justice, shall thereafter be
forwarded to the Department of Justice for maintenance in a file for
identification purposes.
(2) The withdrawal of blood shall be performed in a medically
approved manner. Only health care providers trained and certified to
draw blood may withdraw the blood specimens for purposes of this
section.
(3) Buccal swab samples may be procured by law enforcement or
corrections personnel or other individuals trained to assist in
buccal swab collection.
(4) Right thumbprints and a full palm print impression of each
hand shall be taken on forms prescribed by the Department of Justice.
The palm print forms shall be forwarded to and maintained by the
Bureau of Criminal Identification and Information of the Department
of Justice. Right thumbprints also shall be taken at the time of the
collection of samples and specimens and shall be placed on the sample
and specimen containers and forms as directed by the Department of
Justice. The samples, specimens, and forms shall be forwarded to and
maintained by the DNA Laboratory of the Department of Justice.
(5) The law enforcement or custodial agency collecting specimens,
samples, or print impressions is responsible for confirming that the
person qualifies for entry into the Department of Justice DNA and
Forensic Identification Database and Databank Program prior to
collecting the specimens, samples, or print impressions pursuant to
this chapter.
(6) The DNA Laboratory of the Department of Justice is responsible
for establishing procedures for entering databank and database
information.
(c) (1) Persons authorized to draw blood or obtain samples or
print impressions under this chapter for the databank or database
shall not be civilly or criminally liable either for withdrawing
blood when done in accordance with medically accepted procedures, or
for obtaining buccal swab samples by scraping inner cheek cells of
the mouth, or thumb or palm print impressions when performed in
accordance with standard professional practices.
(2) There is no civil or criminal cause of action against any law
enforcement agency or the Department of Justice, or any employee
thereof, for a mistake in confirming a person's or sample's
qualifying status for inclusion within the database or databank or in
placing an entry in a databank or a database.
(3) The failure of the Department of Justice or local law
enforcement to comply with Article 4 or any other provision of this
chapter shall not invalidate an arrest, plea, conviction, or
disposition.
(d) This section shall only become operative if the California
Supreme Court rules to uphold the California Court of Appeal decision
in People v. Buza (2014) 231 Cal.App.4th 1446 in regard to the
provisions of Section 298 of the Penal Code, as amended by Section 6
of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act,
Proposition 69, approved by the voters at the November 2, 2004,
statewide general election, in which case this section shall become
operative immediately upon that ruling becoming final.
SEC. 4. Section 299 of the Penal Code is amended to read:
299. (a) A person whose DNA profile has been included in the
databank pursuant to this chapter shall have his or her DNA specimen
and sample destroyed and searchable database profile expunged from
the databank program pursuant to the procedures set forth in
subdivision (b) if the person has no past or present offense or
pending charge which qualifies that person for inclusion within the
state's DNA and Forensic Identification Database and Databank Program
and there otherwise is no legal basis for retaining the specimen or
sample or searchable profile.
(b) Pursuant to subdivision (a), a person who has no past or
present qualifying offense, and for whom there otherwise is no legal
basis for retaining the specimen or sample or searchable profile, may
make a written request to have his or her specimen and sample
destroyed and searchable database profile expunged from the databank
program if any of the following apply:
(1) Following arrest, no accusatory pleading has been filed within
the applicable period allowed by law, charging the person with a
qualifying offense as set forth in subdivision (a) of Section 296 or
if the charges which served as the basis for including the DNA
profile in the state's DNA and Forensic Identification Database and
Databank Program have been dismissed prior to adjudication by a trier
of fact;
(2) The underlying conviction or disposition serving as the basis
for including the DNA profile has been reversed and the case
dismissed;
(3) The person has been found factually innocent of the underlying
offense pursuant to Section 851.8, or Section 781.5 of the Welfare
and Institutions Code; or
(4) The defendant has been found not guilty or the defendant has
been acquitted of the underlying offense.
(c) (1) The person requesting the databank entry to be expunged
must send a copy of his or her request to the trial court of the
county where the arrest occurred, or that entered the conviction or
rendered disposition in the case, to the DNA Laboratory of the
Department of Justice, and to the prosecuting attorney of the county
in which he or she was arrested or, convicted, or adjudicated, with
proof of service on all parties. The court has the discretion to
grant or deny the request for expungement. The denial of a request
for expungement is a nonappealable order and shall not be reviewed by
petition for writ.
(2) Except as provided in this section, the Department of Justice
shall destroy a specimen and sample and expunge the searchable DNA
database profile pertaining to the person who has no present or past
qualifying offense of record upon receipt of a court order that
verifies the applicant has made the necessary showing at a noticed
hearing, and that includes all of the following:
(A) The written request for expungement pursuant to this section.
(B) A certified copy of the court order reversing and dismissing
the conviction or case, or a letter from the district attorney
certifying that no accusatory pleading has been filed or the charges
which served as the basis for collecting a DNA specimen and sample
have been dismissed prior to adjudication by a trier of fact, the
defendant has been found factually innocent, the defendant has been
found not guilty, the defendant has been acquitted of the underlying
offense, or the underlying conviction has been reversed and the case
dismissed.
(C) Proof of written notice to the prosecuting attorney and the
Department of Justice that expungement has been requested.
(D) A court order verifying that no retrial or appeal of the case
is pending, that it has been at least 180 days since the defendant or
minor has notified the prosecuting attorney and the Department of
Justice of the expungement request, and that the court has not
received an objection from the Department of Justice or the
prosecuting attorney.
(d) Upon order from the court, the Department of Justice shall
destroy any specimen or sample collected from the person and any
searchable DNA database profile pertaining to the person, unless the
department determines that the person is subject to the provisions of
this chapter because of a past qualifying offense of record or is or
has otherwise become obligated to submit a blood specimen or buccal
swab sample as a result of a separate arrest, conviction, juvenile
adjudication, or finding of guilty or not guilty by reason of
insanity for an offense described in subdivision (a) of Section 296,
or as a condition of a plea.
The Department of Justice is not required to destroy analytical
data or other items obtained from a blood specimen or saliva, or
buccal swab sample, if evidence relating to another person subject to
the provisions of this chapter would thereby be destroyed or
otherwise compromised.
Any identification, warrant, probable cause to arrest, or arrest
based upon a databank or database match is not invalidated due to a
failure to expunge or a delay in expunging records.
(e) Notwithstanding any other law, the Department of Justice DNA
Laboratory is not required to expunge DNA profile or forensic
identification information or destroy or return specimens, samples,
or print impressions taken pursuant to this section if the duty to
register under Section 290 or 457.1 is terminated.
(f) Notwithstanding any other law, including Sections 17, 1170.18,
1203.4, and 1203.4a, a judge is not authorized to relieve a person
of the separate administrative duty to provide specimens, samples, or
print impressions required by this chapter if a person has been
found guilty or was adjudicated a ward of the court by a trier of
fact of a qualifying offense as defined in subdivision (a) of Section
296, or was found not guilty by reason of insanity or pleads no
contest to a qualifying offense as defined in subdivision (a) of
Section 296.
(g) This section shall become inoperative if the California
Supreme Court rules to uphold the California Court of Appeal decision
in People v. Buza (2014) 231 Cal.App.4th 1446 in regard to the
provisions of Section 299 of the Penal Code, as amended by Section 9
of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act,
Proposition 69, approved by the voters at the November 2, 2004,
statewide general election, in which case this section shall become
inoperative immediately upon that ruling becoming final.
SEC. 5. Section 299 is added to the Penal Code, to read:
299. (a) A person whose DNA profile has been included in the
databank pursuant to this chapter shall have his or her DNA specimen
and sample destroyed and searchable database profile expunged from
the databank program if the person has no past or present offense or
pending charge which qualifies that person for inclusion within the
state's DNA and Forensic Identification Database and Databank Program
and there otherwise is no legal basis for retaining the specimen or
sample or searchable profile.
(b) Pursuant to subdivision (a), a person who has no past or
present qualifying offense, and for whom there otherwise is no legal
basis for retaining the specimen or sample or searchable profile
shall have his or her specimen and sample destroyed and searchable
database profile expunged from the databank program if any of the
following apply:
(1) Following arrest, and after the applicable law enforcement
agency has provided notice to the prosecuting attorney that the
criminal case will not be presented to the prosecuting attorney for
review, or after the applicable law enforcement agency has submitted
a criminal case to the prosecuting attorney for review, no accusatory
pleading has been filed within the applicable period allowed by law,
charging the person with a qualifying offense as set forth in
subdivision (a) of Section 296, in which case the prosecuting
attorney shall immediately, or as soon as practically possible,
submit a letter to the Department of Justice indicating that an
accusatory pleading has not been filed.
(2) The charges which served as the basis for including the DNA
profile in the state's DNA and Forensic Identification Database and
Databank Program have been dismissed prior to adjudication by a trier
of fact, in which case the court shall forward an order to the
Department of Justice upon disposition of the case, indicating that
the charges have been dismissed.
(3) The underlying conviction or disposition serving as the basis
for including the DNA profile has been reversed and the case
dismissed, in which case the court shall forward its order to the
Department of Justice upon disposition of the case.
(4) The person has been found factually innocent of the underlying
offense pursuant to Section 851.8, or Section 781.5 of the Welfare
and Institutions Code, in which case the court shall forward its
order to the Department of Justice upon disposition of the case.
(5) The defendant has been found not guilty or the defendant has
been acquitted of the underlying offense, in which case the court
shall forward its order to the Department of Justice upon disposition
of the case.
(c) Except as provided in this section, the Department of Justice
shall destroy a specimen and sample and expunge the searchable DNA
database profile pertaining to the person who has no present or past
qualifying offense of record upon receipt of the following:
(1) A certified copy of the court order reversing and dismissing
the conviction or case, or a letter from the district attorney
certifying that no accusatory pleading has been filed or the charges
which served as the basis for collecting a DNA specimen and sample
have been dismissed prior to adjudication by a trier of fact, the
defendant has been found factually innocent, the defendant has been
found not guilty, the defendant has been acquitted of the underlying
offense, or the underlying conviction has been reversed and the case
dismissed.
(2) A court order verifying that no retrial or appeal of the case
is pending.
(d) Pursuant to this section, the Department of Justice shall
destroy any specimen or sample collected from the person and any
searchable DNA database profile pertaining to the person, unless the
department determines that the person is subject to the provisions of
this chapter because of a past qualifying offense of record or is or
has otherwise become obligated to submit a blood specimen or buccal
swab sample as a result of a separate arrest, conviction, juvenile
adjudication, or finding of guilty or not guilty by reason of
insanity for an offense described in subdivision (a) of Section 296,
or as a condition of a plea.
The Department of Justice is not required to destroy analytical
data or other items obtained from a blood specimen or saliva, or
buccal swab sample, if evidence relating to another person subject to
the provisions of this chapter would thereby be destroyed or
otherwise compromised.
Any identification, warrant, probable cause to arrest, or arrest
based upon a databank or database match is not invalidated due to a
failure to expunge or a delay in expunging records.
(e) Notwithstanding any other law, the Department of Justice DNA
Laboratory is not required to expunge DNA profile or forensic
identification information or destroy or return specimens, samples,
or print impressions taken pursuant to this section if the duty to
register under Section 290 or 457.1 is terminated.
(f) Notwithstanding any other law, including Sections 17, 1170.18,
1203.4, and 1203.4a, a judge is not authorized to relieve a person
of the separate administrative duty to provide specimens, samples, or
print impressions required by this chapter if a person has been
found guilty or was adjudicated a ward of the court by a trier of
fact of a qualifying offense as defined in subdivision (a) of Section
296, or was found not guilty by reason of insanity or pleads no
contest to a qualifying offense as defined in subdivision (a) of
Section 296.
(g) This section shall only become operative if the California
Supreme Court rules to uphold the California Court of Appeal decision
in People v. Buza (2014) 231 Cal.App.4th 1446 in regard to the
provisions of Section 299 of the Penal Code, as amended by Section 9
of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act,
Proposition 69, approved by the voters at the November 2, 2004,
statewide general election, in which case this section shall become
operative immediately upon that ruling becoming final.
