BILL ANALYSIS Ó Senate Appropriations Committee Fiscal Summary Senator Kevin de León, Chair AB 1517 (Skinner) - DNA evidence. Amended: May 23, 2014 Policy Vote: Public Safety 5-0 Urgency: No Mandate: Yes Hearing Date: August 14, 2014 Consultant: Jolie Onodera SUSPENSE FILE. AS AMENDED. Bill Summary: AB 1517 would establish timelines within which both law enforcement agencies and crime laboratories should perform DNA testing of rape kit evidence, as specified. Fiscal Impact (as approved on August 14, 2014): Potentially major ongoing state, local, and special fund costs to meet the timeframes specified to submit and process forensic evidence, as follows: Potentially significant annual costs (Special Fund*) to the Department of Justice (DOJ) of less than $2 million for new staffing to handle the expedited workload and crime lab functions for 46 counties. As the DNA Identification Fund revenue stream is insufficient to support the potential cost increase, General Fund or another fund source would be required to support these costs. In addition, major cost pressure for additional facility space to accommodate the additional staffing. Potentially significant non-reimbursable costs to local crime labs of less than $750,000 to meet the testing timeframes in the bill. The LA Crime Lab had indicated costs of about $500,000 to complete all sexual assault evidence in 60 days. Extending the time period to 120 days should significantly reduce these costs. Assuming LA County accounts for 30 percent of cases statewide, with DOJ processing another 25 percent, the remaining counties would account for the remaining 45 percent of cases, with total statewide costs estimated at less than $1 million. Potentially significant ongoing non-reimbursable local law enforcement agency costs in the hundreds of thousands of dollars to meet the 20-day turnaround time for submittal of evidence to crime labs (current law does not specify a timeframe). AB 1517 (Skinner) Page 1 Potential ongoing state-reimbursable costs in excess of $50,000 to $100,000 (General Fund) to inform all sexual assault victims, regardless if the identity of the perpetrator is at issue, if the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established under existing law (current law only requires notification when the identity of the perpetrator is at issue, and does not require notification if analysis has not been done six months prior to the two-year time limit). Costs would be dependent on the volume of notifications and method of notification (verbal or written) provided. Unknown, potential future increase in state incarceration costs (General Fund) to the extent the expedited turnaround time of DNA testing enables additional prosecutions of sex offenses that would have otherwise been time barred under the existing statute of limitations. Additional commitments to prison could also prevent the commission of future crimes by these defendants. *DNA Identification Fund Background: Existing law establishes the Sexual Assault Victims' DNA Bill of Rights which provides victims of sexual assault with the following: The right to be informed whether or not the DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from the case; The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the DOJ data bank of case evidence; The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the DOJ Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation. Existing law provides that notwithstanding any other limitation of time described, a criminal complaint may be filed within one year of the date on which the identity of the suspect is conclusively established by DNA testing, if both of the following conditions are met: (1) the offense was committed on or after January 1, 2001, and, (2) biological evidence collected AB 1517 (Skinner) Page 2 in connection with the offense is analyzed for DNA type no later than two years from the date of the offense. (Penal Code § 803(g)(1).) Existing law states the intent of the Legislature that a law enforcement agency assigned to investigate specified sexual assault offenses should perform DNA testing of rape kit evidence or other crime scene evidence in a timely manner, but does not specify a set timeframe, in order to assure the longest possible statute of limitations. Existing law provides that if a law enforcement agency elects not to analyze DNA evidence within the two-year timeframe established under existing law, a victim of sexual assault, where the identity of the perpetrator is in issue, shall be informed orally or in writing of that fact by the law enforcement agency. This bill seeks to establish timelines within which both law enforcement agencies and crime labs should adhere in order to ensure the longest possible statute of limitations for sex offenses. Proposed Law: This bill would establish timelines within which law enforcement agencies and crime laboratories should perform DNA testing of rape kit evidence. Specifically, this bill: Provides that a law enforcement agency in whose jurisdiction a specified sex offense occurred should do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016: o Submit sexual assault forensic evidence to the crime lab within 10 days after it is booked into evidence. o Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim. Provides that the crime lab should do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016: o Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically AB 1517 (Skinner) Page 3 possible, but no later than 60 days after initially receiving the evidence. o Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible but no later than 30 days after initially receiving the evidence for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab should upload the profile into CODIS as soon as practically possible but no longer than 30 days after being notified about the presence of DNA. Provides that a crime lab is not required to test all items of forensic evidence obtained in a sexual assault forensic evidence examination, and that a crime lab is considered in compliance with the bill's guidelines when representative samples of the evidence are processed by the lab in an effort to detect foreign DNA of the perpetrator. Defines "rapid turnaround DNA program" as a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted via a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based. Requires a law enforcement agency to inform a victim of sexual assault, either orally or in writing, if the agency does not analyze DNA evidence within six months prior to the time limits established under existing law, irrespective if the identity of the perpetrator is an issue. Prior Legislation: AB 322 (Portantino) 2011 would have established a three-year pilot program in 10 counties, commencing July 1, 2012, in which all rape kits collected in those counties after that date will be processed by the DOJ in department laboratories. This bill was vetoed by the Governor with the following message: I am returning Assembly Bill 322 without my signature. This measure would establish a new pilot program and require the Department of Justice to test all rape kits collected from 10 AB 1517 (Skinner) Page 4 specified counties. These counties, however, don't wish to participate in the program. I don't see why we would mandate counties to participate in a program they don't want, especially when the state is cutting back on so many programs that are needed and wanted. Local officials are in the best position to determine whether to participate in such a program. Staff Comments: The DOJ has indicated both one-time and ongoing costs to meet the timeframes outlined in this measure. As DOJ currently does not have the capacity to expand existing laboratories to accommodate the required increase in staff necessitated by the bill's provisions, DOJ has indicated the need for a new facility at a cost of $14.5 million, as well as ongoing costs of about $3 million for new staffing to continue to handle the crime lab functions for 46 counties. Although special funds from the DNA Identification Fund would be an appropriate fund source for these costs, the existing revenue stream is insufficient to support the potential cost increase, and General Fund or another fund source would be required to support these costs. Local crime labs would also incur significant ongoing non-reimbursable local costs to meet the timeframes specified in this bill. Local law enforcement agencies would likely incur ongoing significant costs potentially in the low millions of dollars statewide to meet the 10-day turnaround time for submittal of evidence to crime labs. Additionally, local law enforcement agencies could incur significant ongoing state-reimbursable costs in excess of $50,000 to $100,000 (General Fund) to inform all sexual assault victims, regardless if the identity of the perpetrator is at issue, if the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established under existing law. As current law only requires notification when the identity of the perpetrator is at issue, and does not require notification if analysis has not been done six months prior to the two-year time limit, this provision could be determined to be a higher level of service by the Commission on State Mandates. Costs would be dependent on the volume of notifications and method of notification (verbal or written) provided. To the extent the expedited turnaround time for DNA evidence AB 1517 (Skinner) Page 5 processing results in additional prosecutions for sex offenses that otherwise would have been time barred by the existing statute of limitations, could result in additional state incarceration costs (General Fund) of an unknown amount. Staff notes any additional commitments to prison could also prevent the commission of future crimes by these defendants, thereby reducing the number of future victims. Author amendments: Extend the guidelines from 10 days to 20 days for law enforcement to send a DNA sample to the laboratory. Extend the guidelines from 60 days to 120 days for the laboratory to process the sample. Add codified, clarifying intent language.