BILL ANALYSIS Ó AB 855 Page 1 Date of Hearing: April 26, 2011 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Ammiano, Tom, Chair AB 855 (Ma) - As Amended: March 21, 2011 SUMMARY : Allows funds remaining in a local DNA Identification Fund to be expended by a local law enforcement agency for the costs of using an authorized, independent laboratory, other than the DOJ, to analyze and expedite the testing of DNA samples. Specifically, this bill : 1)Provides reimbursements to 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, as specified. 2)Requires authorization by a resolution of the county board of supervisors EXISTING LAW : 1)States that except as otherwise provided in this section, for the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty of $1 for every $10, or part of $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 any local ordinance adopted pursuant to the Vehicle Code. ÝCalifornia Government Code Section 76104.6(a)(1).] 2)States that the penalty imposed by this section shall be collected together with and in the same manner as specified sections. These moneys shall be taken from fines and forfeitures deposited with the county treasurer prior to any divisions as specified. The board of supervisors shall establish in the county treasury a DNA Identification Fund into which shall be deposited the collected moneys pursuant to this section. The moneys of the fund shall be allocated. AB 855 Page 2 ÝCalifornia Government Code Section 76104.6(a)(2).] 3)States that this additional penalty does not apply to the following ÝCalifornia Government Code Section 76104.6(a)(3)]: a) Any restitution fine; b) Specified penalties authorized under the Penal Code; c) Specified parking offenses; and, d) The state surcharge authorized by the Penal Code, 4)Provides that the fund moneys described, together with any interest earned thereon, shall be held by the county treasurer separate from any funds subject to transfer or division pursuant to Penal Code Section 1463. 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. ÝCalifornia Government Code Section 76104.6(b)(1).] 5)States that 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 State Controller for credit to the state's DNA Identification Fund, which is hereby established in the State Treasury, as follows ÝCalifornia Government Code Section 76104.6(b)(2)]: a) In the first two calendar years following the effective date of this section, 70% of the amounts collected, including interest earned thereon; b) In the third calendar year following the effective date of this section, 50% of the amounts collected, including interest earned thereon; and, c) In the fourth calendar year following the effective date of this section and in each calendar year thereafter, 25% of the amounts collected, including interest earned thereon. AB 855 Page 3 6)Funds remaining in the county's DNA Identification Fund shall be used only to reimburse local sheriff or other law enforcement agencies to collect DNA specimens, samples, and print impressions pursuant to this chapter; for expenditures and administrative costs made or incurred to comply with specified requirements, including the procurement of equipment and software integral to confirming that a person qualifies for entry into the Department of Justice's (DOJ) DNA Database and Data Bank Program; and to 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 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. ÝCalifornia Government Code Section 76104.6(b)(3).] 7)The state's DNA Identification Fund shall be administered by the DOJ. Funds in the state's DNA Identification Fund, upon appropriation by the Legislature, shall be used by the Attorney General (AG) only to support DNA testing California and to offset the impacts of increased testing and shall be allocated as follows ÝCalifornia Government Code Section 76104.6(b)(4)]: a) Of the amount transferred, as specified, 90% to the Department of Justice's DNA Laboratory, first, to comply with the requirements of Penal Code Section 298.3 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 Databank Act, as amended, and 10% to DOJ's Information Bureau Criminal History Unit for expenditures and administrative costs that have been approved by the Chief of DOJ's Bureau of Forensic Services made or incurred to update equipment and software to facilitate compliance with the requirements of Penal Code Section 299.5(e). ÝCalifornia Government Code Section 76104.6(b)(4)(A).] AB 855 Page 4 b) Of the amount transferred, as specified, funds shall be allocated by the Department of Justice's DNA Laboratory, first, to comply with the requirements of Penal Code Section 298.3 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 Databank Act, as amended. ÝCalifornia Government Code Section 76104.6(b)(4)(B).] c) Of the amount transferred, as specified, funds shall be allocated by DOJ to the DNA Laboratory to comply with the requirements of Penal Code Section 298.3 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 Databank Act, as amended. ÝCalifornia Government Code Section 76104.6(b)(4)(C).] 8)States that 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 DOJ. 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, as specified. DOJ shall make the reports publicly available on DOJ's Web site. ÝCalifornia Government Code Section 76104.6(c).] 9)Provides that all requirements imposed on DOJ 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 DOJ pursuant to this section and any additional appropriation approved by the Legislature for purposes related to implementing this bill. ÝCalifornia Government Code Section 76104.6(d).] 10)States that upon approval of the DNA Fingerprint, Unsolved AB 855 Page 5 Crime and Innocence Protection Act, the Legislature shall loan DOJ's General Fund in the amount of $7 million for purposes of implementing that act. This 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. ÝCalifornia Government Code Section 76104.6(e).] 11)Specifies that notwithstanding any other provision of law, the Controller may use the state's DNA Identification Fund, created as specified, 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% 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. ÝCalifornia Government Code Section 76104.6(f).] 12)Specifies that DOJ laboratories accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board (ASCLD/LAB), any certifying body approved by the ASCLD/LAB or any law enforcement crime laboratory designated by the DOJ accredited by the ASCLD/LAB, or any certifying body approved by them are authorized to analyze crime scene samples and other samples of known and unknown origin and to compare and check the forensic identification profiles, including DNA profiles, of these samples against available DNA and forensic identification data banks in order to establish identity and origin of samples for identification purposes. ÝPenal Code Section 297(a)(1).] 13)Provides that a biological sample obtained from a suspect in a criminal investigation for the commission of any crime may be analyzed for forensic profiles, including DNA profiles, as specified, and then compared by the DOJ in and between as many cases and investigations as necessary. ÝPenal Code Section 297(b)(1).] 14)States that the law enforcement agency submitting a specimen sample or print impression to the DNA Laboratory of the DOJ or law enforcement crime laboratory, as specified, shall inform AB 855 Page 6 the DOJ Laboratory within two years whether the person remains a suspect in a criminal investigation. States that upon written notification from a law enforcement agency, as specified, the Department of Justice DNA Laboratory shall remove the suspect sample from its data bank files. However, any identification, warrant, arrest or prosecution based upon a data bank match shall not be invalidated or dismissed due to a failure to purge files. ÝPenal Code Section 297(b)(2).] 15)States that nothing in this section shall preclude local law enforcement DNA laboratories from maintaining local forensic databases or performing forensic analyses, including DNA profiling, independently from the Department of Justice's DNA and Forensic Identification Data Base and Data Bank Program. ÝPenal Code Section 297(d).] 16)Provides that specimens, samples and print impressions shall be collected from specified persons for present and past qualifying offenses of record, including collection from any adult person following arrest for a felony offense, as specified. ÝPenal Code Section 296.1(a)(1).] 17)States that every adult person arrested for a felony offense, as specified, shall provide a buccal swab sample and thumb and palm print impressions and any blood or other specimens immediately following arrest, or during the booking or intake or reception center process as soon as administratively practicable after arrest, but in any case prior to release on bail or pending trial or any physical release from custody. ÝPenal Code Section 296.1(a)(1)(A).] 18)Provides that if the person did not have specimens, samples, and prints taken immediately following arrest or during booking, the court shall order the person to report within five calendar days to a county jail facility or other designated facility to provide the specimens. ÝPenal Code Section 296.1(a)(1)(B).] 19)States that specified persons who are on probation or parole for any felony or misdemeanor offense, as specified, shall provide buccal swab samples under specified conditions. ÝPenal Code Section 296.1(a)(3).] 20)Requires persons who are parole violators or otherwise returned to custody shall provide buccal swab samples, thumb AB 855 Page 7 and palm print impressions, and any other blood or specimen required, under specified conditions. ÝPenal Code Section 296.1(a)(4).] 21)States that such samples and specimens shall be collected from persons accepted into California from other jurisdictions under the interstate compacts (Penal Code 11175) or other reciprocal agreements with any state, federal agency or other provision of law. ÝPenal Code Section 296.1(a)(5).] 22)Provides that all of the above-cited paragraphs shall have retroactive application. ÝPenal Code Section 296.1(b).] FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "AB 855 will allow law enforcement and district attorneys to access the services of independent crime laboratories for the purpose of expediting the testing and analysis of DNA samples, primarily rape kits. "Two years ago in Yuba County, biological samples from a rape case involving a female AFB airperson, were submitted to the Department of Justice for processing. The sample was submitted January 25th, 2008, but the DNA analysis was not returned until February 4th, 2009 - over a year later. During this period, the victim's deployment to Afghanistan/Iraq was delayed. If Yuba County had been able to contract independent laboratories for the analysis, the results would have been expedited in as little as two weeks. "In 2004, Proposition 69 was passed, increasing various fines to assist with the funding for the DNA Identification Fund for DNA labs, both state and local. Consequentially, the backlogs for DNA testing have been eliminated in several counties due to an increase in funds in their DNA Identification Fund accounts. "However, the backlog of DNA remains an issue for California as it hinders the successful removal of criminals from the streets due to a vast amount of pending cases. In 2008, the Los Angeles Police Department noted 6,132 rape kits containing various DNA materials gathered from the bodies of victims and AB 855 Page 8 from the crime scenes. This is evidence that would likely assist with the proper identification of criminals. At the end of February 2011, the California Department of Justice reported a backlog of 35,409 DNA samples. But on a larger scale, 400,000 untested rape kits remain in police storage throughout the United States. "Some counties right now may have to wait well over a year for a DNA result; however, a private lab can produce the results for that same case in two weeks. The victims of these crimes deserve fast, as well as efficient, results so their case can be heard and they can begin to move forward with their lives. "AB 855 explicitly allows counties to use remaining funds from the state's DNA Identification Fund to compensate law enforcement and district attorneys in order to use independent laboratories to accelerate the analysis of samples, in this case rape kits. "This bill offers the unique opportunity for local law enforcement agencies to exponentially speed up the process at which these DNA kits are currently being processed, without compromising the results. "The bill does not impact funding distributed to the State lab under the program. AB 855 simply allows for remaining dollars otherwise unusable at the local level." 2)Governor's Veto Message : AB 2009 (Logue), of the 2009-10 Legislative Session, was identical to this bill and vetoed. Then Governor Arnold Schwarzenegger stated in his veto message: "This measure would allow counties to use funds from their DNA Identification funds to pay for private laboratories to process DNA samples. While this measure is well-intentioned, leftover public funds would be better used to increase local and state capacity to test DNA rather than diverting these funds to private laboratories. Moreover, as noted by the California Association of Crime Laboratory Directors, this measure could create additional costs for counties and preclude DNA from being submitted to the national Combined DNA Index System." 3)What the Excess Funds Currently Repay : Under current law, AB 855 Page 9 funds remaining in a county's DNA Identification Fund shall be used only to reimburse local sheriff or other law enforcement agencies to collect DNA specimens, samples, and print impressions, as specified; for expenditures and administrative costs made or incurred to comply with specified requirements including the procurement of equipment and software integral to confirming that a person qualifies for entry into the Department of Justice DNA Database and Data Bank Program; and to 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 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)Background of Proposition 69 Generally : Proposition 69 was passed in November 2004 and made substantial changes to the CAL-DNA Data Bank Program. Among these changes is the requirement that all convicted felons provide DNA samples. This requirement has created a significant backlog in California crime laboratories. Proposition 69 also provides how accredited laboratories are authorized to analyze crime scene samples. The law enforcement personnel authorized to collect DNA samples is also identified, both generically and with reference to specific peace officer classifications. Weber v. Lockyer was a class action brought by former arrestees and former convicts against the AG and other state law enforcement officials seeking injunctive and declaratory relief against the law that they contended subjected all adult felony arrestees and former convicted felons to compulsory DNA testing as a violation of the Fourth and Fourteenth Amendments to the United States Constitution. The court described Proposition 69 as follows: "Proposition 69 amended the California Penal Code, Sections 295 et seq. to expand the group of people subject to mandatory DNA testing and inclusion in California's DNA Database and Data Bank Program. Previously, persons convicted of certain sex crimes and other violent crimes were subject to mandatory DNA testing. Effective November 3, 2004, persons convicted of any felony offense and persons arrested for or charged with AB 855 Page 10 murder, manslaughter and certain sex crimes became subject to mandatory DNA testing. Effective January 1, 2009, adults arrested for or charged with any felony offense become subject to mandatory DNA testing (the '2009 arrestee provision'). Under the new law, DNA samples are generally taken by buccal cheek swab. "ÝP]laintiffs attack the provisions of Proposition 69 that allegedly subject all adult felony arrestees and former convicted felons to compulsory DNA testing. Plaintiffs contend that subjecting people who have not been convicted of a crime and people who have been previously convicted but who are no longer subject to the criminal justice system to compulsory DNA testing violates their rights under the 4th and 14th Amendments. "ÝP]laintiffs emphasize that Proposition 69 includes a section on 'retroactive application' stating that the new requirements 'shall have retroactive application' and that testing shall occur 'regardless of when the crime charged or committed became a qualifying offense . . . . (citing Penal Code Section 296.1(b)(1).) Based on what they view as the plain language of Proposition 69, plaintiffs argue that they are currently subject to DNA sampling or will be so subject on January 1, 2009. They argue that a draft, non-binding guidance document issued by the Attorney General does not ensure that the statute will not be enforced against them . . . . " In determining whether or not the plaintiffs had standing to sue in this case, the court observed that prosecuting authorities have not communicated any specific warnings or threats to initiate DNA testing against the plaintiffs. In response, the plaintiffs argued that DNA testing under Proposition 69 is a mandatory administrative duty, thus satisfying one of three tests articulated by case law for standing. However, the court found that the AG's bulletin was issued by the state's chief law officer and can be reasonably expected to establish uniform state policy for the implementation of Proposition 69. The court also noted that only one of the plaintiffs is presently subject to DNA testing and that the others would not be tested under the new law until, at the earliest, January 1, 2009. The court observed that the state's interpretation and enforcement of Proposition 69 will AB 855 Page 11 become much clearer as January 2009 nears. With this information, the court will be better able to evaluate whether plaintiffs have a reasonable fear of DNA testing under Proposition 69 and noted that "there are situations where, even though an allegedly injurious event is certain to occur, the court may delay resolution of constitutional questions until a time closer to the actual occurrence of a disputed event." The court, therefore, decided this case should not be judicially reviewed at this present time. 5)Related Legislation : AB 434 (Logue) allows funds remaining in a county's DNA Identification Fund to reimburse a regional state crime laboratory for costs associated with the analysis and comparison of crime scene DNA with forensic identification samples. AB 434 limits the reimbursements to public labs to address the veto message of 2010's AB 2009. 6)Prior Legislation : AB 2009 (Logue), of the 2009-10 Legislative Session, would have permitted counties to use excess funds from the state's DNA Identification Fund to reimburse law enforcement and district attorneys for use of an independent laboratory, other than DOJ, to expedite the analysis of samples. AB 2009 was vetoed. REGISTERED SUPPORT / OPPOSITION : Support Crime Victims United of California Opposition None Analysis Prepared by : Gabriel Caswell / PUB. S. / (916) 319-3744