California Legislature—2015–16 Regular Session

Assembly BillNo. 84


Introduced by Assembly Member Gatto

January 6, 2015


An act to amend Sections 295.1, 296, 298, 299, and 300 of the Penal Code, relating to DNA samples.

LEGISLATIVE COUNSEL’S DIGEST

AB 84, as introduced, Gatto. Forensic testing: DNA samples.

(1) Existing law, as amended by the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, Proposition 69, approved by the voters at the November 2, 2004, general election (the DNA Act) requires that any adult person who is arrested or charged with any felony offense 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. Existing law requires that blood specimens and buccal swab samples be forwarded promptly to the Department of Justice for analysis. Existing case law holds that the DNA Act, to the extent it requires felony arrestees to submit to a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant, or a judicial or grand jury determination of probable cause, unreasonably intrudes on the arrestee’s expectation of privacy and is invalid under the California Constitution. The DNA Act provides that it may be amended by a statute passed by each house of the Legislature that furthers the purpose of the measure.

This bill would state that it is the intention of the Legislature to further the purposes of the DNA Act in light of the above-specified case law. The bill would require that a blood specimen or buccal swab sample taken from a person arrested for the commission of a felony be forwarded to the department after a judicial determination of probable cause to believe the person has committed the offense for which he or she was arrested has been made.

(2) Existing law, as amended by the DNA Act, requires a person who has been convicted of a felony offense 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. Existing law makes these provisions retroactive, regardless of when the crime charged or committed became a qualifying offense. Existing law, subject to exceptions, provides that any person who has been convicted of certain misdemeanors may not, within 10 years of the conviction, own, purchase, receive, possess, or have under his or her custody or control, any firearm.

This bill would require a person who has been convicted of a misdemeanor to which the 10-year prohibition on the possession of a firearm applies, 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. By imposing additional duties on local law enforcement agencies to collect and forward these samples, this bill would impose a state-mandated local program.

(3) Existing law, as amended by the DNA Act, requires that a DNA specimen and sample be destroyed and that a searchable database profile be expunged from the data bank program if the person from whom the specimen or sample was collected has no past or present offense or pending charge which qualifies that person for inclusion in the database and if that person submits an application, as specified. Existing law gives the court discretion to grant or deny the application.

This bill would require the DNA specimen and sample to be destroyed and the searchable database profile expunged from the database without the requirement of an application.

(4) Existing law, as amended by the DNA Act, states that its provisions do not prohibit collection and analysis of specimens, samples, or print impressions as a condition of a plea for an offense that does not require the taking of samples and specimens.

The bill would state that it is the intent of the Legislature to allow buccal swab samples to be taken for DNA analysis as a condition of a plea or reduction or dismissal of charges. The bill would permit a law enforcement agency to use any publicly available database to aid in the investigation of a crime.

(5) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

It is the intent of the Legislature to limit the
2analysis of buccal swab samples and blood samples taken from
3felony arrestees for purposes of DNA analysis only to the extent
4required by the decision in People v. Buza (2014) 180 Cal Rptr.
53d753, and to further the purposes of the DNA Fingerprint,
6Unsolved Crime and Innocence Protection Act, Proposition 69,
7approved by the voters at the November 2, 2004, statewide general
8election, in light of that decision.

9

SEC. 2.  

It is the intent of the Legislature to allow buccal swab
10samples to be taken for DNA analysis as a condition of a plea or
11reduction or dismissal of charges, provided that all uses of the
12DNA sample have been disclosed to the defendant in writing, that
13consent has been obtained in writing, and that the defendant has
14signed a written agreement allowing his or her buccal swap sample
15or blood sample to be taken for DNA analysis.

16

SEC. 3.  

Section 295.1 of the Penal Code is amended to read:

17

295.1.  

(a) The Department of Justice shall perform DNA
18analysis and other forensic identification analysis pursuant to this
19chapter only for identification purposes.

20(b) The Department of Justice Bureau of Criminal Identification
21and Information shall perform examinations of palm prints pursuant
22to this chapter only for identification purposes.

23(c) The DNA Laboratory of the Department of Justice shall
24serve as a repository for blood specimens and buccal swab and
25other biological samples collected, and shall analyze specimens
26and samples, and store, compile, correlate, compare, maintain, and
P4    1use DNA and forensic identification profiles and records related
2to the following:

3(1) Forensic casework and forensic unknowns.

4(2) Known and evidentiary specimens and samples from crime
5scenes or criminal investigations.

6(3) Missing or unidentified persons.

7(4) Persons required to provide specimens, samples, and print
8impressions under this chapter.

9(5) Legally obtained samples.

10(6) Anonymous DNA records used for training, research,
11statistical analysis of populations, quality assurance, or quality
12control.

13(d) The computerized data bank and database of the DNA
14Laboratory of the Department of Justice shall include files as
15 necessary to implement this chapter.

16(e) begin deleteNothing in this section shall be construed as requiring end deletebegin insertThis
17section does not require end insert
the Department of Justice to provide
18specimens or samples for quality control or other purposes to those
19who request specimens or samples.

20(f) Submission of samples, specimens, or profiles for the state
21DNA Database and Data Bank Program shall include information
22as required by the Department of Justice for ensuring search
23capabilities and compliance with National DNA Index System
24(NDIS) standards.

begin insert

25(g) DNA specimens collected from a person who has been
26convicted of an offense specified in subdivision (a) of Section 296
27may be used to conduct familial searches of the DNA Database.

end insert
28

SEC. 4.  

Section 296 of the Penal Code is amended to read:

29

296.  

(a) The following persons shall provide buccal swab
30samples, right thumbprints, and a full palm print impression of
31each hand, and any blood specimens or other biological samples
32required pursuant to this chapter for law enforcement identification
33analysis:

34(1) Any person, including any juvenile, who is convicted of or
35pleads guilty or no contest to any felony offensebegin insert or to a
36misdemeanor offense specified in Section 29805end insert
, or is found not
37guilty by reason of insanity of any felony offensebegin insert or misdemeanor
38offense specified in Section 29805end insert
, or any juvenile who is
39adjudicated under Section 602 of the Welfare and Institutions Code
P5    1for committing any felony offensebegin insert or a misdemeanor offense
2specified in Section 29805end insert
.

3(2) Any adult person who is arrested for or charged with any of
4the following felony offenses:

5(A) Any felony offense specified in Section 290 or attempt to
6commit any felony offense described in Section 290, or any felony
7offense that imposes upon a person the duty to register in California
8as a sex offender under Section 290.

9(B) Murder or voluntary manslaughter or any attempt to commit
10murder or voluntary manslaughter.

11(C) Commencing on January 1 begin delete of the fifth year following
12enactment of the act that added this subparagraph, as amendedend delete
begin insert,
132009end insert
, any adult person arrested or charged with any felony offense.

14(3) Any person, including any juvenile, who is required to
15register under Section 290 or 457.1 because of the commission of,
16or the attempt to commit, a felony or misdemeanor offense, or any
17person, including any juvenile, who is housed in a mental health
18facility or sex offender treatment program after referral to such
19facility or program by a court after being charged with any felony
20offense.

21(4) The term “felony” as used in this subdivision includes an
22attempt to commit the offense.

23(5) begin deleteNothing in this chapter shall be construed as prohibiting end delete
24begin insertThis chapter does not prohibitend insertbegin insert end insertcollection and analysis of specimens,
25samples, or print impressions as a condition of a plea for a
26non-qualifying offense.

27(b) The provisions of this chapter and its requirements for
28submission of specimens, samples and print impressions as soon
29as administratively practicable shall apply to all qualifying persons
30regardless of sentence imposed, includingbegin delete anyend deletebegin insert aend insert sentence of death,
31life without the possibility of parole, orbegin delete anyend deletebegin insert aend insert life or indeterminate
32term, orbegin delete anyend delete other disposition rendered in the case of an adult or
33juvenile tried as an adult, or whether the person is diverted, fined,
34or referred for evaluation, and regardless of disposition rendered
35or placement made in the case of juvenile who is found to have
36committed any felony offense or is adjudicated under Section 602
37of the Welfare and Institutions Code.

38(c) The provisions of this chapter and its requirements for
39submission of specimens, samples, and print impressions as soon
40as administratively practicable by qualified persons as described
P6    1in subdivision (a) shall apply regardless of placement or
2confinement in any mental hospital or other public or private
3treatment facility, and shall include, but not be limited to, the
4following persons, including juveniles:

5(1) Any person committed to a state hospital or other treatment
6facility as a mentally disordered sex offender underbegin insert formerend insert Article
71 (commencing with Section 6300) of Chapter 2 of Part 2 of
8Division 6 of the Welfare and Institutions Code.

9(2) Any person who has a severe mental disorder as set forth
10within the provisions of Article 4 (commencing with Section 2960)
11of Chapter 7 of Title 1 of Part 3 of the Penal Code.

12(3) Any person found to be a sexually violent predator pursuant
13to Article 4 (commencing with Section 6600) of Chapter 2 of Part
142 of Division 6 of the Welfare and Institutions Code.

15(d) The provisions of this chapter are mandatory and apply
16whether or not the court advises a person, including any juvenile,
17that he or she must provide the data bank and database specimens,
18samples, and print impressions as a condition of probation, parole,
19or any plea of guilty, no contest, or not guilty by reason of insanity,
20or any admission to any of the offenses described in subdivision
21(a).

22(e) If at any stage of court proceedings the prosecuting attorney
23determines that specimens, samples, and print impressions required
24by this chapter have not already been taken from any person, as
25defined under subdivision (a) of Section 296, the prosecuting
26attorney shall notify the court orally on the record, or in writing,
27and request that the court order collection of the specimens,
28samples, and print impressions required by law. However, a failure
29by the prosecuting attorney or any other law enforcement agency
30to notify the court shall not relieve a person of the obligation to
31provide specimens, samples, and print impressions pursuant to this
32chapter.

33(f) Prior to final disposition or sentencing in the case the court
34shall inquire and verify that the specimens, samples, and print
35impressions required by this chapter have been obtained and that
36this fact is included in the abstract of judgment or dispositional
37order in the case of a juvenile. The abstract of judgment issued by
38the court shall indicate that the court has ordered the person to
39comply with the requirements of this chapter and that the person
P7    1shall be included in the state’s DNA and Forensic Identification
2Data Base and Data Bank program and be subject to this chapter.

3However, failure by the court to verify specimen, sample, and
4print impression collection or enter these facts in the abstract of
5judgment or dispositional order in the case of a juvenile shall not
6invalidate an arrest, plea, conviction, or disposition, or otherwise
7relieve a person from the requirements of this chapter.

8

SEC. 5.  

Section 298 of the Penal Code is amended to read:

9

298.  

(a) Thebegin delete Director of Correctionsend deletebegin insert Secretary of the
10Department of Corrections and Rehabilitationend insert
, or the Chief
11Administrative Officer of the detention facility, jail, or other facility
12at which the blood specimens, buccal swab samples, and thumb
13and palm print impressions were collected shall cause these
14specimens, samples, and print impressions to be forwarded
15promptly to the Department of Justicebegin insert, except that end insertbegin inserta blood
16 specimen or buccal swab sampleend insert
begin insert taken from a person arrested for
17the commission of a felony as specified in paragraph (2) of
18subdivision (a) of Section 296end insert
begin insert shall be forwarded to the Department
19of Justice after a judicial determination of probable cause to
20believe the person has committed the offense for which he or she
21was arrested has been made pursuant to Section 825end insert
. The
22specimens, samples, and print impressions shall be collected by a
23person using a Department of Justice approved collection kit and
24in accordance with the requirements and procedures set forth in
25subdivision (b).

26(b) (1) The Department of Justice shall provide all blood
27specimen vials, buccal swab collectors, mailing tubes, labels, and
28instructions for the collection of the blood specimens, buccal swab
29samples, and thumbprints. The specimens, samples, and
30thumbprints shall thereafter be forwarded to the DNA Laboratory
31of the Department of Justice for analysis of DNA and other forensic
32identification markers.

33Additionally, the Department of Justice shall provide all full
34palm print cards, mailing envelopes, and instructions for the
35collection of full palm prints. The full palm prints, on a form
36prescribed by the Department of Justice, shall thereafter be
37forwarded to the Department of Justice for maintenance in a file
38for identification purposes.

39(2) The withdrawal of blood shall be performed in a medically
40approved manner. Only health care providers trained and certified
P8    1to draw blood may withdraw the blood specimens for purposes of
2this section.

3(3) Buccal swab samples may be procured by law enforcement
4or corrections personnel or other individuals trained to assist in
5buccal swab collection.

6(4) Right thumbprints and a full palm print impression of each
7hand shall be taken on forms prescribed by the Department of
8Justice. The palm print forms shall be forwarded to and maintained
9by the Bureau of Criminal Identification and Information of the
10Department of Justice. Right thumbprints also shall be taken at
11the time of the collection of samples and specimens and shall be
12placed on the sample and specimen containers and forms as
13directed by the Department of Justice. The samples, specimens,
14and forms shall be forwarded to and maintained by the DNA
15Laboratory of the Department of Justice.

16(5) The law enforcement or custodial agency collecting
17specimens, samples, or print impressions is responsible for
18confirming that the person qualifies for entry into the Department
19of Justice DNA Database and Data Bank Program prior to
20collecting the specimens, samples, or print impressions pursuant
21to this chapter.

22(6) The DNA Laboratory of the Department of Justice is
23responsible for establishing procedures for entering data bank and
24database information.

25(c) (1) Persons authorized to draw blood or obtain samples or
26print impressions under this chapter for the data bank or database
27shall not be civilly or criminally liable either for withdrawing blood
28when done in accordance with medically accepted procedures, or
29for obtaining buccal swab samples by scraping inner cheek cells
30of the mouth, or thumb or palm print impressions when performed
31in accordance with standard professional practices.

32(2) There is no civil or criminal cause of action against any law
33enforcement agency or the Department of Justice, or any employee
34thereof, for a mistake in confirming a person’s or sample’s
35qualifying status for inclusion within the database or data bank or
36in placing an entry in a data bank or a database.

37(3) The failure of the Department of Justice or local law
38enforcement to comply with Article 4 or any other provision of
39this chapter shall not invalidate an arrest, plea, conviction, or
40disposition.

P9    1

SEC. 6.  

Section 299 of the Penal Code is amended to read:

2

299.  

(a) A person whose DNA profile has been included in
3the data bank pursuant to this chapter shall have his or her DNA
4specimen and sample destroyed and searchable database profile
5expunged from the data bank programbegin delete pursuant to the procedures
6set forth in subdivision (b)end delete
if the person has no past or present
7offense or pending charge which qualifies that person for inclusion
8within the state’s DNA and Forensic Identification Database and
9Data Bank Program and there otherwise is no legal basis for
10retaining the specimen or sample or searchable profile.

11(b) Pursuant to subdivision (a), a person who has no past or
12present qualifying offense, and for whom there otherwise is no
13legal basis for retaining the specimen or sample or searchable
14profilebegin delete, may make a written request toend deletebegin insert shallend insert have his or her
15specimen and sample destroyed and searchable database profile
16expunged from the data bank program ifbegin insert any of the following applyend insert:

17(1) Following arrest, no accusatory pleading has been filed
18within the applicable period allowed by law charging the person
19with a qualifying offense as set forth in subdivision (a) of Section
20296 or if the charges which served as the basis for including the
21DNA profile in the state’s DNA Database and Data Bank
22Identification Program have been dismissed prior to adjudication
23 by a trier of factbegin delete;end deletebegin insert, in which case the district attorney shall submit
24a letter to the Department of Justice as soon as these conditions
25have been met.end insert

26(2) The underlying conviction or disposition serving as the basis
27for including the DNA profile has been reversed and the case
28dismissedbegin delete;end deletebegin insert, in which case the court shall forward its order to the
29Department of Justice upon disposition of the case.end insert

30(3) The person has been found factually innocent of the
31underlying offense pursuant to Section 851.8, or Section 781.5 of
32the Welfare and Institutions Codebegin delete; orend deletebegin insert, in which case the court shall
33forward its order to the Department of Justice upon disposition
34of the case.end insert

35(4) The defendant has been found not guilty or the defendant
36has been acquitted of the underlying offensebegin insert, in which case the
37court shall forward its order to the Department of Justice upon
38disposition of the caseend insert
.

begin delete

39(c) (1) The person requesting the data bank entry to be expunged
40must send a copy of his or her request to the trial court of the
P10   1county where the arrest occurred, or that entered the conviction or
2rendered disposition in the case, to the DNA Laboratory of the
3Department of Justice, and to the prosecuting attorney of the county
4in which he or she was arrested or, convicted, or adjudicated, with
5proof of service on all parties. The court has the discretion to grant
6or deny the request for expungement. The denial of a request for
7expungement is a nonappealable order and shall not be reviewed
8by petition for writ.

end delete
begin delete

9(2)

end delete

10begin insert(c)end insert Except as providedbegin delete belowend deletebegin insert in this sectionend insert, the Department of
11Justice shall destroy a specimen and sample and expunge the
12searchable DNA database profile pertaining to the person who has
13no present or past qualifying offense of record upon receipt ofbegin delete a
14court order that verifies the applicant has made the necessary
15showing at a noticed hearing, and that includes all ofend delete
the following:

begin delete

16(A) The written request for expungement pursuant to this
17section.

end delete
begin delete

18(B)

end delete

19begin insert(1)end insert A certified copy of the court order reversing and dismissing
20the conviction or case, or a letter from the district attorney
21certifying that no accusatory pleading has been filed or the charges
22which served as the basis for collecting a DNA specimen and
23sample have been dismissed prior to adjudication by a trier of fact,
24the defendant has been found factually innocent, the defendant has
25been found not guilty, the defendant has been acquitted of the
26underlying offense, or the underlying conviction has been reversed
27and the case dismissed.

begin delete

28(C) Proof of written notice to the prosecuting attorney and the
29Department of Justice that expungement has been requested.

end delete
begin delete

30(D)

end delete

31begin insert(2)end insert A court order verifying that no retrial or appeal of the case
32isbegin delete pending, that it has been at least 180 days since the defendant
33or minor has notified the prosecuting attorney and the Department
34of Justice of the expungement request, and that the court has not
35received an objection from the Department of Justice or the
36prosecuting attorneyend delete
begin insert pendingend insert.

37(d) Upon order from the court, the Department of Justice shall
38destroy any specimen or sample collected from the person and any
39searchable DNA database profile pertaining to the person, unless
40the department determines that the person is subject to the
P11   1provisions of this chapter because of a past qualifying offense of
2record or is or has otherwise become obligated to submit a blood
3specimen or buccal swab sample as a result of a separate arrest,
4conviction, juvenile adjudication, or finding of guilty or not guilty
5by reason of insanity for an offense described in subdivision (a)
6of Section 296, or as a condition of a plea.

7The Department of Justice is not required to destroy analytical
8data or other items obtained from a blood specimen or saliva, or
9buccal swab sample, if evidence relating to another person subject
10to the provisions of this chapter would thereby be destroyed or
11otherwise compromised.

12Any identification, warrant, probable cause to arrest, or arrest
13based upon a data bank or database match is not invalidated due
14to a failure to expunge or a delay in expunging records.

15(e) Notwithstanding any otherbegin delete provision ofend delete law, the Department
16of Justice DNA Laboratory is not required to expunge DNA profile
17or forensic identification information or destroy or return
18specimens, samples, or print impressions taken pursuant to this
19section if the duty to register under Section 290 or 457.1 is
20terminated.

21(f) Notwithstanding any otherbegin delete provision ofend delete law, including
22Sections 17, 1203.4, and 1203.4a, a judge is not authorized to
23relieve a person of the separate administrative duty to provide
24specimens, samples, or print impressions required by this chapter
25if a person has been found guilty or was adjudicated a ward of the
26court by a trier of fact of a qualifying offense as defined in
27subdivision (a) of Section 296, or was found not guilty by reason
28of insanity or pleads no contest to a qualifying offense as defined
29in subdivision (a) of Section 296.

30

SEC. 7.  

Section 300 of the Penal Code is amended to read:

31

300.  

begin deleteNothing in this chapter shall end deletebegin insertThis chapter does not end insertlimit
32or abrogate any existing authority of law enforcement officers to
33take, maintain, store, and utilize DNA or forensic identification
34markers, blood specimens, buccal swab samples, saliva samples,
35or thumb or palm print impressions for identification purposes.begin insert A
36law enforcement agency may use any publicly available database
37to aid in the investigation of a crime.end insert

38

SEC. 8.  

If the Commission on State Mandates determines that
39this act contains costs mandated by the state, reimbursement to
40local agencies and school districts for those costs shall be made
P12   1pursuant to Part 7 (commencing with Section 17500) of Division
24 of Title 2 of the Government Code.



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