Bill Text: CA AB1697 | 2013-2014 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: DNA and forensic identification database and databank.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Passed) 2014-09-19 - Chaptered by Secretary of State - Chapter 454, Statutes of 2014. [AB1697 Detail]

Download: California-2013-AB1697-Introduced.html

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BILL NUMBER: AB 1697	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Donnelly

                        FEBRUARY 13, 2014

   An act to amend Sections 295.1, 299.5, and 299.6 of, and to add
Section 295.2 to, the Penal Code, relating to forensic
identification.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1697, as introduced, Donnelly. Forensic identification:
informed consent.
   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, subjects certain offenders
to the collection of buccal swab samples, right thumbprints, a full
palm print impression of each hand, and blood specimens or other
biological samples for law enforcement identification analysis. The
DNA Laboratory of the Department of Justice (DOJ) is required to
serve as a repository for blood specimens, buccal swabs, and other
biological samples collected, and is required to analyze specimens
and samples, and to store, compile, correlate, compare, maintain, and
use deoxyribonucleic acid (DNA) and forensic identification profiles
and records related to several functions, including, but not limited
to, using anonymous DNA records for training, research, statistical
analysis of populations, quality assurance, or quality control.
Proposition 69 amended these provisions to include buccal swabs as
samples and using anonymous DNA records for quality assurance.
   This bill would prohibit the DOJ from using any DNA specimen or
sample obtained pursuant to these provisions, or any information,
profile, or record derived from that specimen or sample, for any
purpose related to research or statistical analysis of populations,
except as necessary for quality assurance or quality control, without
complying with the requirements of the Protection of Human Subjects
in Medical Experimentation Act. The prohibition would apply
regardless of whether the DOJ anonymizes DNA records prior to
conducting research or statistical analysis of populations, and would
not apply to DNA specimens, samples, profiles, or records obtained
prior to January 1, 2015. The bill would also make conforming
changes.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature finds and declares all of the
following:
   (a) In June 2013, the United States Supreme Court upheld the
authority of government to collect and analyze deoxyribonucleic acid
(DNA) from individuals arrested for a crime, regardless of whether
they are ultimately convicted. In his dissent, Justice Antonin Scalia
concluded that, "as an entirely predictable consequence of today's
decision, your DNA can be taken and entered into a national DNA
database if you are ever arrested, rightly or wrongly, and for
whatever reason . . . . Today's judgment will, to be sure, have the
beneficial effect of solving more crimes; then again, so would the
taking of DNA samples from anyone who flies on an airplane (surely
the Transportation Security Administration needs to know the
'identity' of the flying public), applies for a driver's license, or
attends a public school. Perhaps the construction of such a genetic
panopticon is wise. But I doubt that the proud men who wrote the
charter of our liberties would have been so eager to open their
mouths for royal inspection" (Maryland v. King (2013) 133 S.Ct. 1958,
1989).
   (b) Also in June 2013, the United States Court of Appeals for the
Ninth Circuit upheld the authority of government to retain DNA
samples indefinitely, long after standard forensic information has
been extracted and entered into a database for criminal
identification purposes. In his dissent, Justice Stephen Reinhardt
noted that "The government has statutory authority to use its
indefinite access to stored blood samples in any capacity justified
by 'law enforcement identification purposes.'  citation omitted]
However, 'law enforcement identification purposes' have not been
specifically defined or circumscribed by Congress or the courts.
Whatever limitation envisioned by restricting use of blood samples to
only those used for 'law enforcement identification purposes,' it
does not prevent the reanalysis or testing of stored blood samples
for certain genetic traits . . . . 'Law enforcement identification
purposes' could include retesting for certain behavior traits. For
example, behavior geneticists have been researching a purported
'crime gene' that could lead to the use of genetic material for
'preventive detentions or other means of social control for those
identified as genetically predisposed to criminality'" (U.S. v.
Kriesel (9th Cir. 2013) 720 F.3d 1137, 1160).
   (c) The California Department of Justice (DOJ) maintains
indefinite access to more than 1.8 million DNA samples. These samples
contain an individual's entire genome, and could be tested to reveal
traits related to ethnicity, health, and behavior. While the DOJ may
only perform DNA analysis "for identification purposes," this term
is not defined, and could include research into the link between
genes and criminal behavior. Existing law authorizes the DOJ to use
its samples for research purposes, and its vast collection of DNA
samples provides the means to study how genetic profiles could help
preemptively identify individuals predisposed to criminal behavior.
This emerging field is known as "behavioral genomics."
   (d) Recent research indicates that more than one-half of the
variance in antisocial behavior can be attributed to genetic factors
(C.J. Ferguson, Genetic Contributions to Antisocial Personality and
Behavior: a Meta-analytic Review from an Evolutionary Prospective,
Journal of Social Psychology (March-April 2010, Volume 150, Issue 2,
pp. 160-180)). For example, researchers have demonstrated that
individuals possessing one particular gene variant are statistically
more likely to join a gang, and also more likely to use a weapon in a
fight (Kevin M. Beaver, et al., Monoamine Oxidase A Genotype Is
Associated with Gang Membership and Weapon Use, Comprehensive
Psychiatry (March 2010, Volume 51, Issue 2, pp. 130-134)). The
ability of this research to identify likely criminals and potential
criminals will increase dramatically as researchers gain the means to
track the interaction of thousands of gene variants across millions
of samples, and correlate these results with known criminal
behaviors. The Department of Justice DNA repository offers that
capability.
   (e) The ability to perform this analysis is increasingly within
reach. According to the National Human Genome Research Institute, the
cost of whole-genome sequencing has decreased more than 9,000 fold
over the past 10 years.
   (f) In response to Nazi human experimentation performed during the
Holocaust, the Nuremberg Military Tribunal's verdict in the "Doctor'
s Trial" incorporated a set of research ethics for legitimate human
experimentation, known as the "Nuremberg Code." These requirements,
such as voluntary informed consent, are codified in California law as
the Protection of Human Subjects in Medical Experimentation Act
(Chapter 1.3 (commencing with Section 24170) of Division 20 of the
Health and Safety Code). It is the intent of the Legislature, in
enacting this act, to ensure that the DOJ provides these basic
protections to all human subjects in behavioral genomics research
studies, regardless of whether the DNA sample itself is obtained
voluntarily or involuntarily.
   (g) It is the intent of the Legislature that nothing in this act
shall limit, or otherwise affect, the forensic activities of the DOJ
unrelated to research, or the use of research for quality control or
quality assurance purposes.
   (h) This act does not amend, the DNA Fingerprint, Unsolved Crime
and Innocence Protection Act adopted as Proposition 69 at the
November 2, 2004, statewide general election. Statutory authority for
the DOJ to perform research using collected DNA samples predates the
adoption of Proposition 69. Pursuant to Section 9605 of the
Government Code, "w]here a section or part of a statute is amended,
it is not to be considered as having been repealed and reenacted in
the amended form. The portions which are not altered are to be
considered as having been the law from the time when they were
enacted; the new provisions are to be considered as having been
enacted at the time of the amendment. ..." Accordingly, the
Legislature remains free to address the issue of research, a matter
that Proposition 69 itself does not "specifically authorize or
prohibit" (People v. Kelly (2010) 47 Cal.4th 1008, 1025-1026; see
also People v. Cooper (2002) 27 Cal.4th 38, 44, and County of San
Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 830).
  SEC. 2.  Section 295.1 of the Penal Code is amended to read:
   295.1.  (a) The Department of Justice shall perform DNA analysis
and other forensic identification analysis pursuant to this chapter
only for identification purposes.
   (b) The Department of Justice Bureau of Criminal Identification
and Information shall perform examinations of palm prints pursuant to
this chapter only for identification purposes.
   (c) The DNA Laboratory of the Department of Justice shall serve as
a repository for blood specimens and buccal swab and other
biological samples collected, and shall analyze specimens and
samples, and store, compile, correlate, compare, maintain, and use
DNA and forensic identification profiles and records related to the
following:
   (1) Forensic casework and forensic unknowns.
   (2) Known and evidentiary specimens and samples from crime scenes
or criminal investigations.
   (3) Missing or unidentified persons.
   (4) Persons required to provide specimens, samples, and print
impressions under this chapter.
   (5) Legally obtained samples.
   (6)  Anonymous   Subject to the requirements
of Section 295.2, anonymous  DNA records used for training,
research, statistical analysis of populations, quality assurance, or
quality control.
   (d) The computerized data bank and database of the DNA Laboratory
of the Department of Justice shall include files as necessary to
implement this chapter.
   (e) Nothing in this section shall be construed as requiring the
Department of Justice to provide specimens or samples for quality
control or other purposes to those who request specimens or samples.
   (f) Submission of samples, specimens, or profiles for the state
DNA Database and Data Bank Program shall include information as
required by the Department of Justice for ensuring search
capabilities and compliance with National DNA Index System (NDIS)
standards.
  SEC. 3.  Section 295.2 is added to the Penal Code, to read:
   295.2.  (a) The Department of Justice shall not use any DNA
specimen or sample obtained pursuant to this chapter, or any
information, profile, or record derived from that specimen or sample,
for any purpose related to research or statistical analysis of
populations, except as necessary for quality assurance or quality
control, without complying with the requirements of the Protection of
Human Subjects in Medical Experimentation Act (Chapter 1.3
(commencing with Section 24170) of Division 20 of the Health and
Safety Code). This section applies regardless of whether the
Department of Justice anonymizes DNA records prior to conducting
research or statistical analysis of populations.
   (b) This section does not apply to DNA specimens, samples,
profiles, or records obtained prior to January 1, 2015.
  SEC. 4.  Section 299.5 of the Penal Code is amended to read:
   299.5.  (a) All DNA and forensic identification profiles and other
identification information retained by the Department of Justice
pursuant to this chapter are exempt from any law requiring disclosure
of information to the public and shall be confidential except as
otherwise provided in this chapter.
   (b) All evidence and forensic samples containing biological
material retained by the Department of Justice DNA Laboratory or
other state law enforcement agency are exempt from any law requiring
disclosure of information to the public or the return of biological
specimens, samples, or print impressions.
   (c) Non-DNA forensic identification information may be filed with
the offender's file maintained by the Sex Registration Unit of the
Department of Justice or in other computerized data bank or database
systems maintained by the Department of Justice.
   (d) The DNA and other forensic identification information retained
by the Department of Justice pursuant to this chapter shall not be
included in the state summary criminal history information. However,
nothing in this chapter precludes law enforcement personnel from
entering into a person's criminal history information or offender
file maintained by the Department of Justice, the fact that the
specimens, samples, and print impressions required by this chapter
have or have not been collected from that person.
   (e) The fact that the blood specimens, saliva or buccal swab
samples, and print impressions required by this chapter have been
received by the DNA Laboratory of the Department of Justice shall be
included in the state summary criminal history information as soon as
administratively practicable.
   The full palm prints of each hand shall be filed and maintained by
the Automated Latent Print Section of the Bureau of Criminal
Identification and Information of the Department of Justice, and may
be included in the state summary criminal history information.
   (f) DNA samples and DNA profiles and other forensic identification
information shall be released only to law enforcement agencies,
including, but not limited to, parole officers of the Department of
Corrections, hearing officers of the parole authority, probation
officers, the Attorney General's office, district attorneys' offices,
and prosecuting city attorneys' offices, unless otherwise
specifically authorized by this chapter. Dissemination of DNA
specimens, samples, and DNA profiles and other forensic
identification information to law enforcement agencies and district
attorneys' offices outside this state shall be performed in
conformity with the provisions of this chapter.
   (g) A defendant's DNA and other forensic identification
information developed pursuant to this chapter shall be available to
his or her defense counsel upon court order made pursuant to Chapter
10 (commencing with Section 1054) of Title 6 of Part 2.
   (h) Except as provided in subdivision (g) and in order to protect
the confidentiality and privacy of database and data bank
information, the Department of Justice and local public DNA
laboratories shall not otherwise be compelled in a criminal or civil
proceeding to provide any DNA profile or forensic identification
database or data bank information or its computer database program
software or structures to any person or party seeking  such
  those  records or information whether by subpoena
or discovery, or other procedural device or inquiry.
   (i) (1) (A) Any person who knowingly uses an offender specimen,
sample, or DNA profile collected pursuant to this chapter for other
than criminal identification or exclusion purposes, or for other than
the identification of missing persons, or who knowingly discloses
DNA or other forensic identification information developed pursuant
to this section to an unauthorized individual or agency, for other
than criminal identification or exclusion purposes, or for the
identification of missing persons, in violation of this chapter,
shall be punished by imprisonment in a county jail not exceeding one
year or by imprisonment in the state prison for 16 months, or two or
three years.
   (B) Any person who, for the purpose of financial gain, knowingly
uses a specimen, sample, or DNA profile collected pursuant to this
chapter for other than criminal identification or exclusion purposes
or for the identification of missing persons or who, for the purpose
of financial gain, knowingly discloses DNA or other forensic
identification information developed pursuant to this section to an
unauthorized individual or agency, for other than criminal
identification or exclusion purposes or for other than the
identification of missing persons, in violation of this chapter,
shall, in addition to the penalty provided in subparagraph (A), be
punished by a criminal fine in an amount three times that of any
financial gain received or ten thousand dollars ($10,000), whichever
is greater.
   (2) (A) If any employee of the Department of Justice knowingly
uses a specimen, sample, or DNA profile collected pursuant to this
chapter for other than criminal identification or exclusion purposes,
or knowingly discloses DNA or other forensic identification
information developed pursuant to this section to an unauthorized
individual or agency, for other than criminal identification or
exclusion purposes or for other than the identification of missing
persons, in violation of this chapter, the department shall be liable
in civil damages to the donor of the DNA identification information
in the amount of five thousand dollars ($5,000) for each violation,
plus attorney's fees and costs. In the event of multiple disclosures,
the total damages available to the donor of the DNA is limited to
fifty thousand dollars ($50,000) plus attorney's fees and costs.
   (B) (i) Notwithstanding any other law, this shall be the sole and
exclusive remedy against the Department of Justice and its employees
available to the donor of the DNA.
   (ii) The Department of Justice employee disclosing DNA
identification information in violation of this chapter shall be
absolutely immune from civil liability under this or any other law.
   (3) It is not a violation of this section for a law enforcement
agency in its discretion to publicly disclose the fact of a DNA
profile match, or the name of the person identified by the DNA match
when this match is the basis of law enforcement's investigation,
arrest, or prosecution of a particular person, or the identification
of a missing or abducted person.
   (j) It is not a violation of this chapter to furnish DNA or other
forensic identification information of the defendant to his or her
defense counsel for criminal defense purposes in compliance with
discovery.
   (k) It is not a violation of this section for law enforcement to
release DNA and other forensic identification information developed
pursuant to this chapter to a jury or grand jury, or in a document
filed with a court or administrative agency, or as part of a judicial
or administrative proceeding, or for this information to become part
of the public transcript or record of proceedings when, in the
discretion of law enforcement, disclosure is necessary because the
DNA information pertains to the basis for law enforcement's
identification, arrest, investigation, prosecution, or exclusion of a
particular person related to the case.
   (l) It is not a violation of this section to include information
obtained from a file in a transcript or record of a judicial
proceeding, or in any other public record when the inclusion of the
information in the public record is authorized by a court, statute,
or decisional law.
   (m)  It   Except   as specified in
Section 295.2, it  is not a violation of this section for the
DNA Laboratory of the Department of Justice, or an organization
retained as an agent of the Department of Justice, or a local public
laboratory to use anonymous records or criminal history information
obtained pursuant to this chapter for training, research, statistical
analysis of populations, or quality assurance or quality control.
   (n) The Department of Justice shall make public the methodology
and procedures to be used in its DNA program prior to the
commencement of DNA testing in its laboratories. The Department of
Justice shall review and consider on an ongoing basis the findings
and results of any peer review and validation studies submitted to
the department by members of the relevant scientific community
experienced in the use of DNA technology. This material shall be
available to criminal defense counsel upon court order made pursuant
to Chapter 10 (commencing with Section 1054) of Title 6 of Part 2.
   (o) In order to maintain the computer system security of the
Department of Justice DNA and Forensic Identification Database and
Data Bank Program, the computer software and database structures used
by the DNA Laboratory of the Department of Justice to implement this
chapter are confidential.
  SEC. 5.  Section 299.6 of the Penal Code is amended to read:
   299.6.  (a) Nothing in this chapter shall prohibit the Department
of Justice, in its sole discretion, from the sharing or disseminating
of population database or data bank information, DNA profile or
forensic identification database or data bank information, analytical
data and results generated for forensic identification database and
data bank purposes, or protocol and forensic DNA analysis methods and
quality assurance or quality control procedures with any of the
following:
   (1) Federal, state, or local law enforcement agencies.
   (2) Crime laboratories, whether public or private, that serve
federal, state, and local law enforcement agencies that have been
approved by the Department of Justice.
   (3) The attorney general's office of any state.
   (4) Any state or federally authorized auditing agent or board that
inspects or reviews the work of the Department of Justice DNA
Laboratory for the purpose of ensuring that the laboratory meets
ASCLD/LAB and FBI standards for accreditation and quality assurance
standards necessary under this chapter and for the state's
participation in CODIS and other national or international
crime-solving networks.
   (5)  Any   Subject to the requirements of
Section 295.2, any  third party that the Department of Justice
deems necessary to assist the department's crime laboratory with
statistical analyses of population databases, or the analyses of
forensic protocol, research methods, or quality control procedures,
or to assist in the recovery or identification of human remains for
humanitarian purposes, including identification of missing persons.
   (b) The population databases and data banks of the DNA Laboratory
of the Department of Justice may be made available to and searched by
the FBI and any other agency participating in the FBI's CODIS System
or any other national or international law enforcement database or
data bank system.
   (c) The Department of Justice may provide portions of biological
samples including blood specimens, saliva samples, and buccal swab
samples collected pursuant to this chapter to local public law
enforcement DNA laboratories for identification purposes provided
that the privacy provisions of this section are followed by the local
public law enforcement laboratory and if each of the following
conditions is met:
   (1) The procedures used by the local public DNA laboratory for the
handling of specimens and samples and the disclosure of results are
the same as those established by the Department of Justice pursuant
to Sections 297, 298, and 299.5.
   (2) The methodologies and procedures used by the local public DNA
laboratory for DNA or forensic identification analysis are compatible
with those used by the Department of Justice, or otherwise are
determined by the Department of Justice to be valid and appropriate
for identification purposes.
   (3) Only tests of value to law enforcement for identification
purposes are performed and a copy of the results of the analysis are
sent to the Department of Justice.
   (4) All provisions of this section concerning privacy and security
are followed.
   (5) The local public law enforcement DNA laboratory assumes all
costs of securing the specimens and samples and provides appropriate
tubes, labels, and materials necessary to secure the specimens and
samples.
   (d) Any local DNA laboratory that produces DNA profiles of known
reference samples for inclusion within the permanent files of the
state's DNA Data Bank program shall follow the policies of the DNA
Laboratory of the Department of Justice.