Bill Text: CA AB84 | 2015-2016 | Regular Session | Introduced

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

---

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-Introduced.html

---

BILL NUMBER: AB 84	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Gatto

                        JANUARY 6, 2015

   An act to amend Sections 295.1, 296, 298, 299, and 300 of the
Penal Code, relating to DNA samples.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 84, as introduced, 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 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 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, 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 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 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 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) 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, 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 sample or blood
sample to be taken for DNA analysis.
  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)  Nothing in this section shall be construed as
requiring   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.  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) 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  , or is found
not guilty by reason of insanity of any felony offense  or
misdemeanor offense specified in Section 29805  , 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  .
   (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  of the fifth year following
enactment of the act that added this subparagraph, as amended
  , 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)  Nothing in this chapter shall be construed as
prohibiting   This   chapter does not prohibit
   collection and analysis of specimens, samples, or
print impressions as a condition of a plea for a non-qualifying
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  any  
a  sentence of death, life without the possibility of parole,
or  any   a  life or indeterminate term, or
 any  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 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  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  , 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  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 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   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  ; or   , 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) (1) The person requesting the data bank 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) 
    (c)  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) 
    (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. 
   (C) Proof of written notice to the prosecuting attorney and the
Department of Justice that expungement has been requested. 

   (D) 
    (2)  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   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  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.
  SEC. 7.  Section 300 of the Penal Code is amended to read:
   300.   Nothing in this chapter shall   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.

  SEC. 8.  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.