BILL NUMBER: AB 855 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Members Hagman and Ma
(Principal coauthor: Assembly Member Logue)
(Coauthor: Assembly Member Gorell)
FEBRUARY 17, 2011
An act to amend Section 14250 of the Penal Code, relating to DNA
testing.
LEGISLATIVE COUNSEL'S DIGEST
AB 855, as introduced, Hagman. DNA testing.
Existing law requires the Department of Justice to develop a DNA
database for all cases involving the report of an unidentified
deceased person or a high-risk missing person. Existing law defines a
high-risk missing person for purposes of that provision.
This bill would make a technical, nonsubstantive change to that
definition.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 14250 of the Penal Code is amended to read:
14250. (a) (1) The Department of Justice shall develop a DNA
database for all cases involving the report of an unidentified
deceased person or a high-risk missing person.
(2) The database required in paragraph (1) shall be comprised of
DNA data from genetic markers that are appropriate for human
identification, but have no capability to predict biological function
other than gender. These markers shall be selected by the department
and may change as the technology for DNA typing progresses. The
results of DNA typing shall be compatible with and uploaded into the
CODIS DNA database established by the Federal Bureau of
Investigation. The sole purpose of this database shall be to identify
missing persons and shall be kept separate from the database
established under Chapter 6 (commencing with Section 295) of Title 9
of Part 1.
(3) The Department of Justice shall compare DNA samples taken from
the remains of unidentified deceased persons with DNA samples taken
from personal articles belonging to the missing person, or from the
parents or appropriate relatives of high-risk missing persons.
(4) For the purpose of this database, "high-risk missing person"
means a person missing as a result of a stranger abduction, a person
missing under suspicious circumstances, a person missing under
unknown circumstances, or where if
there is reason to assume that the person is in danger, or deceased,
and that person has been missing more than 30 days, or less than 30
days in the discretion of the investigating agency.
(b) The department shall develop standards and guidelines for the
preservation and storage of DNA samples. Any agency that is required
to collect samples from unidentified remains for DNA testing shall
follow these standards and guidelines. These guidelines shall address
all scientific methods used for the identification of remains,
including DNA, anthropology, odontology, and fingerprints.
(c) (1) A coroner shall collect samples for DNA testing from the
remains of all unidentified persons and shall send those samples to
the Department of Justice for DNA testing and inclusion in the DNA
databank. After the department has taken a sample from the remains
for DNA analysis and completed all DNA testing, the remaining
evidence shall be returned to the appropriate local coroner.
(2) After a report has been made of a person missing under
high-risk circumstances, the responsible investigating law
enforcement agency shall inform the parents or other appropriate
relatives that they may give a voluntary sample for DNA testing or
may collect a DNA sample from a personal article belonging to the
missing person if available. The samples shall be taken by the
appropriate law enforcement agency in a manner prescribed by the
Department of Justice. The responsible investigating law enforcement
agency shall wait no longer than 30 days after a report has been made
to inform the parents or other relatives of their right to give a
sample.
(3) The Department of Justice shall develop a standard release
form that authorizes a mother, father, or other relative to
voluntarily provide the sample. The release shall explain that DNA is
to be used only for the purpose of identifying the missing person
and that the DNA sample and profile will be destroyed upon request.
No incentive or coercion shall be used to compel a parent or relative
to provide a sample.
(4) The Department of Justice shall develop a model kit that law
enforcement shall use when taking samples from parents and relatives.
(5) Before submitting the sample to the department for analysis,
law enforcement shall reverify the status of the missing person.
After 30 days has elapsed from the date the report was filed, law
enforcement shall send the sample to the department for DNA testing
and inclusion in the DNA database, with a copy of the crime report,
and any supplemental information.
(6) All retained samples and DNA extracted from a living person,
and profiles developed therefrom, shall be used solely for the
purpose of identification of the deceased's remains. All samples and
DNA extracted from a living person, and profiles developed therefrom,
shall be destroyed after a positive identification with the deceased'
s remains is made and a report is issued, unless any of the following
has occurred:
(A) The coroner has made a report to a law enforcement agency
pursuant to Section 27491.1 of the Government Code, that he or she
has a reasonable ground to suspect that the identified person's death
has been occasioned by another by criminal means.
(B) A law enforcement agency makes a determination that the
identified person's death has been occasioned by another by criminal
means.
(C) The evidence is needed in an active criminal investigation to
determine whether the identified person's death has been occasioned
by another by criminal means.
(D) A governmental entity is required to retain the material
pursuant to Section 1417.9.
(7) Notwithstanding any other provisions of this section, upon the
request of any living person who submits his or her DNA sample and
profile pursuant to this section, including the parent or guardian of
a child who submits a DNA sample of the child, the DNA sample shall
be removed from the DNA database.
(d) All DNA samples and profiles developed therefrom shall be
confidential and shall only be disclosed to personnel of the
Department of Justice, law enforcement officers, coroners, medical
examiners, district attorneys, and persons who need access to a DNA
sample for purposes of the prosecution or defense of a criminal case,
except that a law enforcement officer or agency may publicly
disclose the fact of a DNA profile match after taking reasonable
measures to first notify the family of an unidentified deceased
person or the family of a high-risk missing person that there has
been an identification.
(e) All DNA, forensic identification profiles, and other
identification information retained by the Department of Justice
pursuant to this section are exempt from any law requiring disclosure
of information to the public.
(f) (1) Any person who knowingly discloses DNA or other forensic
identification information developed pursuant to this section to an
unauthorized individual or agency, or for any purpose other than for
identification or for use in a criminal investigation, prosecution,
or defense, is guilty of a misdemeanor.
(2) A person who collects, processes, or stores DNA or DNA samples
from a living person that are used for DNA testing pursuant to this
section who does either of the following is liable in civil damages
to the donor of the DNA in the amount of five thousand dollars
($5,000) for each violation, plus attorney's fees and costs:
(A) Fails to destroy samples or DNA extracted from a living person
pursuant to paragraph (6) of subdivision (c).
(B) Discloses DNA samples in violation of subdivision (d).
(g) (1) If a disclosure or failure to destroy samples described in
paragraph (2) of subdivision (f) is made by an employee of the
Department of Justice, the department shall be liable for those
actions of its employee.
(2) Notwithstanding any other law, the remedy in this section
shall be the sole and exclusive remedy against the department and its
employees available to the donor of the DNA against the department
and its employees.
(3) The department employee disclosing DNA or other forensic
identification information or otherwise violating this section shall
be absolutely immune from civil liability under this or any other
law.
(h) It is not an unauthorized disclosure or violation of this
section to release DNA and other forensic identification information
as part of a judicial or administrative proceeding, to a jury or
grand jury, or in a document filed with a court or administrative
agency, or for this information to become part of the public
transcript or record of proceedings.
(i) In order to maintain computer system security, the computer
software and database structures used by the DNA laboratory of the
Department of Justice to implement this chapter are confidential.