Bill Text: CA AB84 | 2015-2016 | Regular Session | Amended
Bill Title: Forensic testing: DNA samples.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2016-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB84 Detail]
Download: California-2015-AB84-Amended.html
BILL NUMBER: AB 84 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 23, 2015
INTRODUCED BY Assembly Member Gatto
JANUARY 6, 2015
An act to amend Sections 295.1, 296 ,
298, 299, and 300 of , and to amend and add Sections
293 and 294 of, the Penal Code, relating to DNA samples.
LEGISLATIVE COUNSEL'S DIGEST
AB 84, as amended, 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 that 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, review granted February 18, 2015, S223698,
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
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 a person who
has been convicted of a 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 makes these
provisions retroactive, regardless of when the crime charged or
committed became a qualifying offense. Existing law, subject
to exceptions, provides that any person who has been convicted of
certain misdemeanors may not, within 10 years of the conviction, own,
purchase, receive, possess, or have under his or her custody or
control, any firearm.
This bill would require a person who has been convicted of
a misdemeanor to which the 10-year prohibition on the
possession of a firearm applies, specified
misdemeanors 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. By imposing additional duties on local law
enforcement agencies to collect and forward these samples, this bill
would impose a state-mandated local program.
(3) 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 the data bank
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.
(4) Existing law, as amended by the DNA Act, states that nothing
in the act shall be construed to restrict the authority of local law
enforcement to maintain their own DNA-related databases or databank.
This bill would allow a law enforcement agency to use a publicly
available database, excluding a law enforcement database that is not
linked to the Combined DNA Index System (CODIS), if the case being
investigated involves a homicide or sexual assault involving force
and the case is unsolved and all investigative leads have been
exhausted, in which case the bill would require the law enforcement
agency to review nonforensic information in order to identify
additional evidence bearing on relatedness.
(4)
(5) Existing law, as amended by the DNA Act, states
that its provisions do not prohibit collection and analysis of
specimens, samples, or print impressions as a condition of a plea for
an offense that does not require the taking of samples and
specimens.
The bill would state that it is the intent of the Legislature to
allow buccal swab samples to be taken for DNA analysis as a condition
of a plea or reduction or dismissal of charges. The bill would
permit a law enforcement agency to use any publicly available
database to aid in the investigation of a crime.
(5)
(6) The California Constitution requires the state to
reimburse local agencies and school districts for certain costs
mandated by the state. Statutory provisions establish procedures for
making that reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
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 (2014) 180 Cal Rptr. 3d753
231 Cal.App.4th 1446 , 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. It is the intent of the Legislature to allow buccal swab
samples to be taken for DNA analysis as a condition of a plea or
reduction or dismissal of charges, provided that all uses of the DNA
sample have been disclosed to the defendant in writing, that consent
has been obtained in writing, and that the defendant has signed a
written agreement allowing his or her buccal swap
swab sample or blood sample to be taken for DNA analysis.
It is the intent of the Legislature that buccal swab
samples taken as a condition of a plea or reduction or dismissal
charges be done on the basis of individualized consideration.
SEC. 3. 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 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) This section does not require 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.
(g) DNA specimens collected from a person who has been convicted
of an offense specified in subdivision (a) of Section 296 may be used
to conduct familial searches of the DNA Database.
SEC. 4. SEC. 3. Section 296 of the
Penal Code is amended to read:
296. (a) The following persons shall provide buccal swab samples,
right thumbprints, and a full palm print impression of each hand,
and any blood specimens or other biological samples required pursuant
to this chapter for law enforcement identification analysis:
(1) (A) Any person, including any juvenile,
who is convicted of or pleads guilty or no contest to any felony
offense or to a misdemeanor offense specified in Section
29805, offense, or is found not guilty by reason
of insanity of any felony offense or misdemeanor offense
specified in Section 29805, offense, or any
juvenile who is adjudicated under Section 602 of the Welfare and
Institutions Code for committing any felony offense or a
misdemeanor offense specified in Section 29805.
offense.
(B) Any person, not including a juvenile, who is convicted or
pleads guilty or no contest to a misdemeanor violation of Section
136.1, 136.5, 171b, or 186.28, subdivision (b), (c), or (d) of
Section 243, Section 243.4, 244.5, 245, 245.5, 417, 417.6, 422,
646.9, 25300, or 32625, or subdivision (d) of Section 26100, or who
is found not guilty by reason of insanity of any of those misdemeanor
offenses.
(2) Any adult person who is arrested for or charged with any of
the following felony offenses:
(A) Any felony offense specified in Section 290 or attempt to
commit any felony offense described in Section 290, or any felony
offense that imposes upon a person the duty to register in California
as a sex offender under Section 290.
(B) Murder or voluntary manslaughter or any attempt to commit
murder or voluntary manslaughter.
(C) Commencing on January 1, 2009, any adult person arrested or
charged with any felony offense.
(3) Any person, including any juvenile, who is required to
register under Section 290 or 457.1 because of the commission of, or
the attempt to commit, a felony or misdemeanor offense, or any
person, including any juvenile, who is housed in a mental health
facility or sex offender treatment program after referral to such
facility or program by a court after being charged with any felony
offense.
(4) The term "felony" as used in this subdivision includes an
attempt to commit the offense.
(5) This chapter does not prohibit collection and analysis of
specimens, samples, or print impressions as a condition of a plea for
a non-qualifying nonqualifying
offense.
(b) The provisions of this chapter and its requirements for
submission of specimens, samples and print impressions as soon as
administratively practicable shall apply to all qualifying persons
regardless of sentence imposed, including a sentence of death, life
without the possibility of parole, or a life or indeterminate term,
or other disposition rendered in the case of an adult or juvenile
tried as an adult, or whether the person is diverted, fined, or
referred for evaluation, and regardless of disposition rendered or
placement made in the case of juvenile who is found to have committed
any felony offense or is adjudicated under Section 602 of the
Welfare and Institutions Code.
(c) The provisions of this chapter and its requirements for
submission of specimens, samples, and print impressions as soon as
administratively practicable by qualified persons as described in
subdivision (a) shall apply regardless of placement or confinement in
any mental hospital or other public or private treatment facility,
and shall include, but not be limited to, the following persons,
including juveniles:
(1) Any person committed to a state hospital or other treatment
facility as a mentally disordered sex offender under former Article 1
(commencing with Section 6300) of Chapter 2 of Part 2 of Division 6
of the Welfare and Institutions Code.
(2) Any person who has a severe mental disorder as set forth
within the provisions of Article 4 (commencing with Section 2960) of
Chapter 7 of Title 1 of Part 3 of the Penal Code.
(3) Any person found to be a sexually violent predator pursuant to
Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of
Division 6 of the Welfare and Institutions Code.
(d) The provisions of this chapter are mandatory and apply whether
or not the court advises a person, including any juvenile, that he
or she must provide the data bank and database specimens, samples,
and print impressions as a condition of probation, parole, or any
plea of guilty, no contest, or not guilty by reason of insanity, or
any admission to any of the offenses described in subdivision (a).
(e) If at any stage of court proceedings the prosecuting attorney
determines that specimens, samples, and print impressions required by
this chapter have not already been taken from any person, as defined
under subdivision (a) of Section 296, the prosecuting attorney shall
notify the court orally on the record, or in writing, and request
that the court order collection of the specimens, samples, and print
impressions required by law. However, a failure by the prosecuting
attorney or any other law enforcement agency to notify the court
shall not relieve a person of the obligation to provide specimens,
samples, and print impressions pursuant to this chapter.
(f) Prior to final disposition or sentencing in the case the court
shall inquire and verify that the specimens, samples, and print
impressions required by this chapter have been obtained and that this
fact is included in the abstract of judgment or dispositional order
in the case of a juvenile. The abstract of judgment issued by the
court shall indicate that the court has ordered the person to comply
with the requirements of this chapter and that the person shall be
included in the state's DNA and Forensic Identification Data
Base and Data Bank program Database and Databank
Program and be subject to this chapter.
However, failure by the court to verify specimen, sample, and
print impression collection or enter these facts in the abstract of
judgment or dispositional order in the case of a juvenile shall not
invalidate an arrest, plea, conviction, or disposition, or otherwise
relieve a person from the requirements of this chapter.
SEC. 5. 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, 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 after a judicial determination of probable cause to
believe the person has committed the offense for which he or she was
arrested has been made pursuant to Section 825. 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 Data Bank 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 data bank and database
information.
(c) (1) Persons authorized to draw blood or obtain samples or
print impressions under this chapter for the data bank 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 data bank or
in placing an entry in a data bank 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.
SEC. 6. Section 299 of the Penal Code is
amended to read:
299. (a) A person whose DNA profile has been included in the data
bank pursuant to this chapter shall have his or her DNA specimen and
sample destroyed and searchable database profile expunged from the
data bank 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 Data Bank
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 data bank 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 Database and Data Bank Identification
Program have been dismissed prior to adjudication by a trier of fact,
in which case the district attorney shall submit a letter to the
Department of Justice as soon as these conditions have been met.
(2) 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.
(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, in which case the court shall forward its
order to the Department of Justice upon disposition of the case.
(4) 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) 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 data bank 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, 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.
SEC. 4. Section 298 of the Penal Code
is amended to read:
298. (a) The Director of Corrections
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 Data Bank 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 data bank
databank and database information.
(c) (1) Persons authorized to draw blood or obtain samples or
print impressions under this chapter for the data bank
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 data
bank databank or in placing an entry in a
data bank 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. 5. Section 298 is added to the
Penal Code , to read:
298. (a) (1) 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 after a judicial determination of probable cause to
believe the person has committed the offense for which he or she was
arrested has been made pursuant to Section 825. 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. 6. Section 299 of the Penal Code
is amended to read:
299. (a) A person whose DNA profile has been included in the
data bank databank pursuant to this
chapter shall have his or her DNA specimen and sample destroyed and
searchable database profile expunged from the data bank
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
Data Bank 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
data bank 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 Data Bank Identification
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 data bank
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 below 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 data bank databank or
database match is not invalidated due to a failure to expunge or a
delay in expunging records.
(e) Notwithstanding any other provision of 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 provision of law,
including Sections 17, 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. 7. 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, 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, in which case the district attorney shall submit a letter
to the Department of Justice as soon as these conditions have been
met.
(2) 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.
(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, in which case the court shall forward its
order to the Department of Justice upon disposition of the case.
(4) 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) 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, 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.
SEC. 7. SEC. 8. Section 300 of the
Penal Code is amended to read:
300. (a) This chapter does not limit or
abrogate any existing authority of law enforcement officers to take,
maintain, store, and utilize DNA or forensic identification markers,
blood specimens, buccal swab samples, saliva samples, or thumb or
palm print impressions for identification purposes. A law
enforcement agency may use any publicly available database to aid in
the investigation of a crime.
(b) A law enforcement agency may use a publicly available
database, excluding a law enforcement database that is not linked to
the Combined DNA Index System (CODIS), if the case being investigated
involves a homicide or sexual assault involving force and the case
is unsolved and all investigative leads have been exhausted, in which
case the law enforcement agency shall review nonforensic information
in order to identify additional evidence bearing on relatedness.
SEC. 8. SEC. 9. If the Commission on
State Mandates determines that this act contains costs mandated by
the state, reimbursement to local agencies and school districts for
those costs shall be made pursuant to Part 7 (commencing with Section
17500) of Division 4 of Title 2 of the Government Code.
