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.  








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            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.









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          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).]  









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             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 








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            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 








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            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 








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            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 








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            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, 








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            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 








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            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 








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            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