BILL NUMBER: AB 855	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 21, 2011

INTRODUCED BY   Assembly Members  Hagman  
  and Ma   Ma   and Hagman

   (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.   An act to amend Section 76104.6 of
the Government Code, relating to county penalties. 


	LEGISLATIVE COUNSEL'S DIGEST


   AB 855, as amended,  Hagman  Ma.  DNA
testing.   County penalties: forensic laboratories.
 
   Existing law, the DNA Fingerprint, Unresolved Crime and Innocence
Protection Act, an initiative measure, requires an additional penalty
of $1 for every $10 or part thereof to be levied in each county upon
every fine, penalty, or forfeiture imposed and collected by the
courts for all criminal offenses, as specified. The act requires the
county board of supervisors to establish in the county treasury a DNA
Identification Fund, into which the collected penalties are to be
deposited. The act requires 25% of the moneys in the county fund to
be transferred to the state's DNA Identification Fund and specifies
the purposes for which funds in the county's and the state's DNA
Identification Funds may be used, including to reimburse local
sheriff, police, district attorney, and regional state crime
laboratories for expenditures and administrative costs made or
incurred in connection with the processing, analysis, tracking, and
storage of DNA crime scene samples, as specified. The act provides
for its amendment by the Legislature if the amendments further the
act and are consistent with its purpose to enhance the use of DNA
identification evidence for the purpose of accurate and expeditious
crime solving and exonerating the innocent.  
   This bill would provide that, if authorized by a resolution of the
board of supervisors, funds remaining in the county's DNA
Identification Fund may be used to reimburse a local sheriff, police,
district attorney, or regional state crime laboratory for
expenditures and administrative costs made or incurred for utilizing
an authorized laboratory for the processing and analysis of forensic
identification samples and testimony related to that analysis, as
specified.  
   The bill would declare that its provisions further the initiative
act and are consistent with its purposes.  
   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 76104.6 of the  
Government Code   is amended to read: 
   76104.6.  (a) (1) Except as otherwise provided in this section,
for the purpose of implementing the DNA Fingerprint, Unsolved Crime
and Innocence Protection Act (Proposition 69), as approved by the
voters at the November 2, 2004, statewide general election, there
shall be levied an additional penalty of one dollar  ($1) 
for every ten dollars ($10), or part of ten dollars ($10), in each
county upon every fine, penalty, or forfeiture imposed and collected
by the courts for all criminal offenses, including all offenses
involving a violation of the Vehicle Code or a local ordinance
adopted pursuant to the Vehicle Code.
   (2) The penalty imposed by this section shall be collected
together with and in the same manner as the amounts established by
Section 1464 of the Penal Code. The moneys shall be taken from fines
and forfeitures deposited with the county treasurer prior to any
division pursuant to Section 1463 of the Penal Code. The board of
supervisors shall establish in the county treasury a DNA
Identification Fund into which shall be deposited the moneys
collected pursuant to this section. The moneys of the fund shall be
allocated pursuant to subdivision (b).
   (3) The additional penalty does not apply to the following:
   (A) A restitution fine.
   (B) A penalty authorized by Section 1464 of the Penal Code or this
chapter.
   (C) A parking offense subject to Article 3 (commencing with
Section 40200) of Chapter 1 of Division 17 of the Vehicle Code.
   (D) The state surcharge authorized by Section 1465.7 of the Penal
Code.
   (b) (1) The fund moneys described in subdivision (a), together
with any interest earned thereon, shall be held by the county
treasurer separate from any funds subject to transfer or division
pursuant to Section 1463 of the Penal Code. Deposits to the fund may
continue through and including the 20th year after the initial
calendar year in which the surcharge is collected, or longer if and
as necessary to make payments upon any lease or leaseback arrangement
utilized to finance any of the projects specified herein.
   (2) On the last day of each calendar quarter of the year specified
in this subdivision, the county treasurer shall transfer fund moneys
in the county's DNA Identification Fund to the Controller for credit
to the state's DNA Identification Fund, which is hereby established
in the State Treasury, as follows:
   (A) In the first two calendar years following the effective date
of this section, 70 percent of the amounts collected, including
interest earned thereon.
   (B) In the third calendar year following the effective date of
this section, 50 percent of the amounts collected, including interest
earned thereon.
   (C) In the fourth calendar year following the effective date of
this section and in each calendar year thereafter, 25 percent of the
amounts collected, including interest earned thereon.
   (3) Funds remaining in the county's DNA Identification Fund shall
be used only  to   for the following purposes:

   (A)     To  reimburse  a 
local sheriff or other law enforcement  agencies to collect
  agency for the collection of  DNA specimens,
samples, and print impressions pursuant to this chapter  ;
for   . 
    (B)     For  expenditures and
administrative costs made or incurred to comply with the requirements
of paragraph (5) of subdivision (b) of Section 298 of the Penal Code
 ,  including the procurement of equipment and software
integral to confirming that a person qualifies for entry into the
Department of Justice DNA and Forensic Identification Database and
Data Bank Program  ; and to   .  
   (C) If authorized by a resolution of the county board of
supervisors, to reimburse a local sheriff, police, district attorney,
or regional state crime laboratory for expenditures and
administrative costs made or incurred for utilizing a laboratory that
meets state and federal requirements, including the Federal Bureau
of Investigation Quality Assurance Standards, and that is accredited
by an organization approved by the National DNA Index System
Procedures Board for the processing and analysis of forensic
identification samples and testimony related to that analysis in
order to expedite the analysis of crime scene samples and proceed
with a pending criminal action or investigation within that county.

    (D)    To reimburse a  local sheriff,
police, district attorney,  and   or 
regional state crime  laboratories   laboratory
 for expenditures and administrative costs made or incurred in
connection with the processing, analysis, tracking, and storage of
DNA crime scene samples from cases in which DNA evidence would be
useful in identifying or prosecuting suspects, including the
procurement of equipment and software for the processing, analysis,
tracking, and storage of DNA crime scene samples from unsolved cases.

   (4) The state's DNA Identification Fund shall be administered by
the Department of Justice. Funds in the state's DNA Identification
Fund, upon appropriation by the Legislature, shall be used by the
Attorney General only to support DNA testing in the state and to
offset the impacts of increased testing and shall be allocated as
follows:
   (A) Of the amount transferred pursuant to subparagraph (A) of
paragraph (2) of subdivision (b), 90 percent to the Department of
Justice DNA Laboratory, first, to comply with the requirements of
Section 298.3 of the Penal Code and, second, for expenditures and
administrative costs made or incurred in connection with the
processing, analysis, tracking, and storage of DNA specimens and
samples including the procurement of equipment and software for the
processing, analysis, tracking, and storage of DNA samples and
specimens obtained pursuant to the DNA and Forensic Identification
Database and Data Bank Act of 1998, as amended by Chapter 6
(commencing with Section 295) of Title 9 of Part 1 of the Penal Code,
and 10 percent to the Department of Justice Information Bureau
Criminal History Unit for expenditures and administrative costs that
have been approved by the Chief of the Department of Justice Bureau
of Forensic Services made or incurred to update equipment and
software to facilitate compliance with the requirements of
subdivision (e) of Section 299.5 of the Penal Code.
   (B) Of the amount transferred pursuant to subparagraph (B) of
paragraph (2) of subdivision (b), funds shall be allocated by the
Department of Justice DNA Laboratory, first, to comply with the
requirements of Section 298.3 of the Penal Code and, second, for
expenditures and administrative costs made or incurred in connection
with the processing, analysis, tracking, and storage of DNA specimens
and samples including the procurement of equipment and software for
the processing, analysis, tracking, and storage of DNA samples and
specimens obtained pursuant to the DNA and Forensic Identification
Database and Data Bank Act of 1998, as amended.
   (C) Of the amount transferred pursuant to subparagraph (C) of
paragraph (2) of subdivision (b), funds shall be allocated by the
Department of Justice to the DNA Laboratory to comply with the
requirements of Section 298.3 of the Penal Code and for expenditures
and administrative costs made or incurred in connection with the
processing, analysis, tracking, and storage of DNA specimens and
samples including the procurement of equipment and software for the
processing, analysis, tracking, and storage of DNA samples and
specimens obtained pursuant to the DNA and Forensic Identification
Database and Data Bank Act of 1998, as amended.
   (c) On or before April 1 in the year following adoption of this
section, and annually thereafter, the board of supervisors of each
county shall submit a report to the Legislature and the Department of
Justice. The report shall include the total amount of fines
collected and allocated pursuant to this section, and the amounts
expended by the county for each program authorized pursuant to
paragraph (3) of subdivision (b). The Department of Justice shall
make the reports publicly available on the department's Internet Web
site.
   (d) All requirements imposed on the Department of Justice pursuant
to the DNA Fingerprint, Unsolved Crime and Innocence Protection Act
are contingent upon the availability of funding and are limited by
revenue, on a fiscal year basis, received by the Department of
Justice pursuant to this section and any additional appropriation
approved by the Legislature for purposes related to implementing this
act.
   (e) Upon approval of the DNA Fingerprint, Unsolved Crime and
Innocence Protection Act, the Legislature shall lend the Department
of Justice General Fund in the amount of seven million dollars
($7,000,000) for purposes of implementing the act. The loan shall be
repaid with interest calculated at the rate earned by the Pooled
Money Investment Account at the time the loan is made. Principal and
interest on the loan shall be repaid in full no later than four years
from the date the loan was made and shall be repaid from revenue
generated pursuant to this section.
   (f) Notwithstanding any other  provision of  law,
the Controller may use the state's DNA Identification Fund, created
pursuant to paragraph (2) of subdivision (b), for loans to the
General Fund as provided in Sections 16310 and 16381. Any such loan
shall be repaid from the General Fund with interest computed at 110
percent of the Pooled Money Investment Account rate, with the
interest commencing to accrue on the date the loan is made from the
fund. This subdivision does not authorize any transfer that will
interfere with the carrying out of the object for which the state's
DNA Identification Fund was created.
   SEC. 2.    The Legislature hereby finds and declares
that the amendments made by this act to Section 76104.6 of the
Government Code further the DNA Fingerprint, Unresolved Crime and
Innocence Protection Act as enacted by the approval of Proposition 69
at the November 3, 2004, general election, and is consistent with
the act's purposes.  
  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 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.