BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1697
                                                                  Page 1

          Date of Hearing:  March 25, 2014
          Counsel:       Shaun Naidu


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                   AB 1697 (Donnelly) - As Amended:  March 20, 2014


           SUMMARY  :  Prohibits the Department of Justice (DOJ), local  
          public laboratories, and DOJ's third-party partners from using  
          DNA sequence data for purposes of identifying or characterizing  
          any general correlation between sequence-specific information  
          and behaviors, health, or ethnicity, as specified.   
          Specifically,  this bill  :

          1)Makes legislatives findings and declarations that the U.S.  
            Supreme Court upheld the authority of the government to  
            collect and analyze DNA from individuals arrested for a crime,  
            regardless of whether the person is ultimately convicted; that  
            the U.S. Court of Appeals for the Ninth Circuit upheld the  
            authority of the government to retain DNA samples  
            indefinitely; that DOJ maintains indefinite access to more  
            than 1.8 million DNA samples; that recent research indicates  
            that more than one-half of the variance in antisocial behavior  
            can be attributed to genetic factors, and the ability of this  
            research to identify likely criminals and potential criminals  
            will increase dramatically as researchers gain the means to  
            track the interaction of thousands of gene variants across  
            millions of samples and correlate these results with known  
            criminal behaviors; and that the ability to perform this  
            analysis is increasingly within reach, as the cost of  
            whole-genome sequencing has decreased more than 9,000 fold  
            over the past 10 years.

          2)Provides, for the purposes of the DNA and Forensic  
            Identification Database and Data Bank Act (the Act), the terms  
            "research" and "statistical analysis of populations" do not  
            include the use of DNA sequence data for purposes of  
            identifying or characterizing any general correlations between  
            sequence-specific information and behaviors, health, or  
            ethnicity.  States that this type of research or statistical  
            analysis of populations does not serve a forensic purpose.









                                                                  AB 1697
                                                                  Page 2

          3)Provides that anonymous DNA records used for training,  
            research, statistical analysis of populations, quality  
            assurance, or quality control are subject to the above  
            provision.

          4)Provides that subject to the provision above (#2), it is not a  
            violation of law for the DOJ DNA Laboratory, or an  
            organization retained as an agent of DOJ, or a local public  
            laboratory to use anonymous records or criminal history  
            information obtained pursuant to the Act for training,  
            research, statistical analysis of populations, or quality  
            assurance or quality control.

          5)Provides that subject to the provision above (#2), nothing in  
            the Act prohibits DOJ from the sharing or disseminating of  
            population database or data bank information, DNA profile or  
            forensic identification database or data bank information,  
            analytical data and results generated for forensic  
            identification database and data bank purposes, or protocol  
            and forensic DNA analysis methods and quality assurance or  
            quality control procedures with any third party that DOJ deems  
            necessary to assist DOJ's crime laboratory with statistical  
            analyses of population databases, or the analyses of forensic  
            protocol, research methods, or quality control procedures, or  
            to assist in the recovery or identification of human remains  
            for humanitarian purposes, including identification of missing  
            persons.

           EXISTING LAW  : 

          1)Provides that DOJ, through its DNA Laboratory, is responsible  
            for the management and administration of the state's DNA and  
            Forensic Identification Database and Data Bank Program and for  
            liaising with the Federal Bureau of Investigation (FBI)  
            regarding the state's participation in a national or  
            international DNA database and data bank program such as the  
            Combined DNA Index System (CODIS) that allows the storage and  
            exchange of DNA records submitted by state and local forensic  
            DNA laboratories nationwide.  (Pen. Code, § 295, subd. (g).)

          2)Provides that DOJ can perform DNA analysis, other forensic  
            identification analysis, and examination of palm prints  
            pursuant to the Act only for identification purposes.  (Pen.  
            Code, § 295.1, subds. (a) & (b).)









                                                                  AB 1697
                                                                  Page 3

          3)Provides that the DOJ DNA Laboratory is to serve as a  
            repository for blood specimens, buccal swab, and other  
            biological samples collected and is required to analyze  
            specimens and samples and store, compile, correlate, compare,  
            maintain, and use DNA and forensic identification profiles and  
            records related to the following:

             a)   Forensic casework and forensic unknowns.

             b)   Known and evidentiary specimens and samples from crime  
               scenes or criminal investigations.

             c)   Missing or unidentified persons.

             d)   Persons required to provide specimens, samples, and  
               print impressions.

             e)   Legally obtained samples.

             f)   Anonymous DNA records used for training, research,  
               statistical analysis of populations, quality assurance, or  
               quality control.

          4)Requires the following persons to provide buccal swab samples,  
            right thumbprints, and a full palm print impression of each  
            hand, and any blood specimens or other biological samples  
            required for law enforcement identification analysis: 

             a)   Any person, including any juvenile, who is convicted of  
               or pleads guilty or no contest to any felony offense (or  
               attempt thereof), or is found not guilty by reason of  
               insanity of any felony offense (or attempt thereof), or any  
               juvenile who is adjudicated a ward of the juvenile court,  
               as specified, for committing any felony offense (or attempt  
               thereof).

             b)   Any adult person who is arrested for or charged with any  
               felony offense (or attempt thereof).

             c)   Any person, including any juvenile, who is required to  
               register under the sex offender or arson registries because  
               of the commission of, or the attempt to commit, a felony or  
               misdemeanor offense, or any person, including any juvenile,  
               who is housed in a mental health facility or sex offender  
               treatment program after referral to such facility or  








                                                                  AB 1697
                                                                  Page 4

               program by a court after being charged with any felony  
               offense (or attempt thereof).  (Pen. Code, § 296.)

          5)States that all DNA and forensic identification profiles and  
            other identification information retained by DOJ pursuant to  
            the Act are exempt from any law requiring disclosure of  
            information to the public and are confidential except as  
            otherwise provided in the Act.

          6)Provides that, except to the defense counsel, upon court  
            order, of a defendant whose DNA and other forensic  
            identification information were developed pursuant to the Act,  
            DOJ and local public DNA laboratories shall not otherwise be  
            compelled in a criminal or civil proceeding to provide any DNA  
            profile or forensic identification database or data bank  
            information or its computer database program software or  
            structures to any person or party seeking such records or  
            information whether by subpoena, discovery, or other  
            procedural device or inquiry.  (Pen. Code, § 299.5, subd.  
            (h).)

          7)Punishes as an alternate misdemeanor/felony any person who  
            knowingly uses an offender specimen, sample, or DNA profile  
            collected pursuant to the Act for other than criminal  
            identification or exclusion purposes, or for other than the  
            identification of missing persons, or who knowingly discloses  
            DNA or other forensic identification information developed as  
            specified to an unauthorized individual or agency, for other  
            than criminal identification or exclusion purposes, or for the  
            identification of missing persons, by imprisonment in a county  
            jail not exceeding one year or by imprisonment in the state  
            prison for 16 months, or two or three years.  (Pen. Code, §  
            299.5, subd. (i)(1)(A).)

          8)Specifies that it is not a violation of the above provision  
            for the DOJ DNA Laboratory, or an organization retained as a  
            DOJ agent, or a local public laboratory to use anonymous  
            records or criminal history information obtained pursuant to  
            the Act for training, research, statistical analysis of  
            populations, quality assurance, or quality control.  (Pen.  
            Code, § 299.5, subd. (m).)

          9)Provides that the Act does not prohibit DOJ, in its sole  
            discretion, from the sharing or disseminating of population  
            database or data bank information, DNA profile or forensic  








                                                                  AB 1697
                                                                  Page 5

            identification database or data bank information, analytical  
            data and results generated for forensic identification  
            database and data bank purposes, or protocol and forensic DNA  
            analysis methods and quality assurance or quality control  
            procedures with any third party that DOJ deems necessary to  
            assist the department's crime laboratory with statistical  
            analyses of population databases, or the analyses of forensic  
            protocol, research methods, or quality control procedures, or  
            to assist in the recovery or identification of human remains  
            for humanitarian purposes, including identification of missing  
            persons.  (Pen. Code, § 299.6, subd. (a)(5).)

           FISCAL EFFECT  :  Unknown



           COMMENTS  :   

           1)Author's Statement  :  According to the author, "As the cost of  
            DNA sequencing decreases and the ability to process large  
            amounts of data increases, the state will have unprecedented  
            ability to link genetics with criminal activity.  While this  
            may sound like the movie Minority Report, it is no longer  
            science fiction.  Your most private information about who you  
            are isn't even safe from the government anymore.

            "For crime purposes, it is beneficial for the State to  
            identify perpetrators; however, if the government wants to  
            conduct research on our highly personal genetic makeup, they  
            need our permission. These are the standards that govern  
            research at our universities; we should hold the Department of  
            Justice to those same basic ethical standards."

           2)Background  :  In 1998, the Legislature enacted the DNA and  
            Forensic Identification Database and Data Bank Act of 1998,  
            which enhanced statewide biological identifying data  
            collection by establishing a database within DOJ to house DNA  
            and forensic identifying material to "assist federal, state,  
            and local criminal justice and law enforcement agencies within  
            and outside California in the expeditious and accurate  
            detection and prosecution of individuals responsible for sex  
            offenses and other crimes, the exclusion of suspects who are  
            being investigated for these crimes, and the identification of  
            missing and unidentified persons, particularly abducted  
            children."  (Pen. Code, § 295, subd. (c).)  Among other  








                                                                  AB 1697
                                                                  Page 6

            things, the Act expanded the list of crimes, upon the  
            conviction of which, required an individual to provide blood  
            specimens and a saliva sample for DNA and genetic analysis.   
            The samples, collected by the California Department of  
            Corrections and Rehabilitation, the Department of Youth  
            Authority, and local jails, were submitted to DOJ for analysis  
            and storage in the statewide DNA data bank and compared to DNA  
            evidence collected from crime scenes for possible matches.   
            The DNA profiles also are submitted to the Combined DNA Index  
            System (CODIS) maintained by the FBI.  (Pen. Code, § 295,  
            subd. (g).)  CODIS connects DNA laboratories at the local,  
            state, and national levels and standardizes the points of  
            comparison used in DNA analysis.  (Ibid.)  
                
            In 2004, voters amended the Act with the passage of  
            Proposition 69, the "DNA Fingerprint, Unsolved Crime and  
            Innocence Protection Act."  Proposition 69, upon enactment of  
            the measure, required that DNA collection be expanded to  
            include adults and juveniles convicted of any felony offense;  
            adults and juveniles convicted of any sex offense; adults  
            arrested for or charged with felony sex offenses, murder,  
            voluntary manslaughter, or the attempt of these crimes.  (Pen.  
            Code, § 296, subd. (a).)  Starting in 2009, Proposition 69  
            required the DNA collection of all adults arrested for or  
            charged with (as opposed to only those convicted of) any  
            felony offense.  (Ibid.)  Moreover, in addition to the  
            biological samples already required to be provided under  
            then-existing law, Proposition 69 mandated that those  
            individuals specified above also provide buccal swab samples,  
            right thumbprints, and a full palm print impression of each  
            hand.  (Ibid.)  
                 
            3)Maryland v. King  :  In Maryland v. King (2013) 133 S.Ct. 1958,  
            the U.S. Supreme Court examined the constitutionality of law  
            enforcement collecting and analyzing cheek swab DNA of  
            arrestees of serious offenses.  In this case, Alonzo King was  
            arrested on first- and second-degree assault charges and  
            during the detention booking process was administered a  
            routine, warrantless buccal swab pursuant to applicable  
            Maryland law.  (Id. at p. 1965.)  The DNA sample taken from  
            King was found to match the DNA of a rape suspect taken from  
            the victim.  King consequently was tried for and convicted of  
            the rape.  (Ibid.)  Overturning, the Maryland high court's  
            decision that the taking of King's DNA by a buccal swab was an  
            unconstitutional search, the U.S. Supreme Court held that when  








                                                                  AB 1697
                                                                  Page 7

            law enforcement officers make an arrest, supported by probable  
            cause, for a serious offense and bring the suspect to the  
            station to be detained in custody, taking and analyzing a  
            cheek swab of the arrestee's DNA is, like fingerprinting and  
            photographing, a legitimate police booking procedure that is  
            reasonable under the Fourth Amendment.  (Id. at p. 1958.)
             
             The Court found that because King already was in valid police  
            custody before the search, the need for a warrant was  
            diminished greatly, and the standard to determine the  
            constitutionality of the warrantless search was reasonableness  
            instead of individualized suspicion.  In deciding the  
            reasonableness of the search, the Court weighed "the degree to  
            which [the search] intrudes upon an individual's privacy"  
            against "the promotion of legitimate government interests."   
            (King, at p. 1970 (internal citation omitted).)  Here, the  
            Court found that the government had a significant interest in  
            a safe and accurate way to process and identify people and  
            possessions taken into custody.  (Id. at p. 1971.)  Moreover  
            the Court stated that, when probable cause exists to arrest a  
            person and hold him in custody, DNA identification plays a  
            crucial role in serving that interest.  In considering the  
            defendant's legitimate expectation of privacy, which is  
            necessarily diminished when he is taken into custody, the  
            Court found that the cheek swab, which involves a brief and  
            minimal intrusion with virtually no risk, trauma, or pain,  
            does not increase the indignity  already present during the  
            arrest and booking process.  (Id. at p. 1977-78.)  In  
            balancing these and other factors, the Court found that the  
            defendant's right to privacy here did not outweigh the  
            government's legitimate interest, and, therefore, the buccal  
            swap was a constitutional search.  (Id. at p. 1980.)

            In his dissent, Justice Scalia, joined by three other  
            justices, argued that, while the Court has permitted  
            warrantless government searches without individualized  
            (particular) suspicion in the past, it has never done so in  
            cases where the primary purpose of the search was to detect  
            evidence of ordinary criminal wrongdoing, as the Court has  
            done in this case, but rather "only when a governmental  
            purpose aside from crime-solving is at stake [does the Court]  
            engage in the free-form 'reasonableness' inquiry."  (King,  
            supra, 133 S.Ct. at p. 1981-82 (dis. opn. of Scalia, J.).)   
            Justice Scalia goes on to argue that the Court, in its  
            discussion of the search serving to "identify" King, conflates  








                                                                  AB 1697
                                                                  Page 8

            identification with ordinary law-enforcement aims, which  
            requires individualized suspicion.  (Id. at p. 1983.)
             
          4)Argument in Support  :   Taxpayers for Improving Public Safety   
            argues, "Due to advances in genome research, and unknown  
            consequences of future research, it is of the utmost  
            importance that the data collected by safety agencies remain  
            confidential and used solely for the purpose intended, i.e.,  
            comparing DNA samples at a crime scene with that of the  
            created data base.  The DNA testing results should never be  
            made available to insurance companies, to employers or to the  
            public for any purpose.  Even if there is a provision to allow  
            consent, the consent will be a form of coercion in that a  
            refusal to consent will create the presumption that the  
            individual has something to hide. 

             "By statutorily assuring that the DNA data base may be used  
            solely for public safety purposes, the safety of personal data  
            is assured.  Today, the Yisraelis have perfected artificial  
            creation of DNA which allows DNA to be altered to match a  
            different individual.  There is an effort to base insurance  
            risk based upon genetic propensity for disease.  The State  
            should not allow unnecessary intrusion into the private lives  
            of citizens in the name of public safety.  By statutorily  
            assuring that the DNA data base may be used solely for public  
            safety purposes, the safety of personal data is assured."
             
          5)Prior Legislation  :  AB 1371 (Yee), Chapter 397, Statutes of  
            2003, increased the standards for informed consent relating to  
            participation in a medical experiment.  
           
           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Taxpayers for Improving Public Safety

           Opposition 
           
          None
           

          Analysis Prepared by  :    Shaun Naidu / PUB. S. / (916) 319-3744 










                                                                  AB 1697
                                                                  Page 9