Amended in Assembly April 23, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 84


Introduced by Assembly Member Gatto

January 6, 2015


An act to amend Sectionsbegin delete 295.1,end delete 296begin delete, 298, 299,end delete and 300 ofbegin insert, and to amend and add Sections 293 and 294 of,end insert the Penal Code, relating to DNA samples.

LEGISLATIVE COUNSEL’S DIGEST

AB 84, as amended, 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 lawbegin insert, People v. Buza (2014) 231 Cal.App.4th 1446, review granted February 18, 2015, S223698,end insert 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 wouldbegin insert, if the California Supreme Court rules to uphold People v. Buza,end insert 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.begin delete 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.end delete

This bill would require a person who has been convicted ofbegin delete a misdemeanor to which the 10-year prohibition on the possession of a firearm applies,end deletebegin insert specified misdemeanorsend insert 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 thebegin delete data bankend deletebegin insert databankend insert 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 wouldbegin insert, if the California Supreme Court rules to uphold People v. Buza,end insert require the DNA specimen and sample to be destroyed and the searchable database profile expunged from the database without the requirement of an application.

begin insert

(4) Existing law, as amended by the DNA Act, states that nothing in the act shall be construed to restrict the authority of local law enforcement to maintain their own DNA-related databases or databank.

end insert
begin insert

This bill would allow a law enforcement agency to use a publicly available database, excluding a law enforcement database that is not linked to the Combined DNA Index System (CODIS), if the case being investigated involves a homicide or sexual assault involving force and the case is unsolved and all investigative leads have been exhausted, in which case the bill would require the law enforcement agency to review nonforensic information in order to identify additional evidence bearing on relatedness.

end insert
begin delete

(4)

end delete

begin insert(5)end insert 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.

begin delete

(5)

end delete

begin insert(6)end insert 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)begin delete 180 Cal Rptr.
53d753end delete
begin insert 231 Cal.App.4th 1446end insert, and to further the purposes of the
6DNA Fingerprint, Unsolved Crime and Innocence Protection Act,
7Proposition 69, approved by the voters at the November 2, 2004,
8statewide general election, in light of that decision.

P4    1

SEC. 2.  

It is the intent of the Legislature to allow buccal swab
2samples to be taken for DNA analysis as a condition of a plea or
3reduction or dismissal of charges, provided that all uses of the
4DNA sample have been disclosed to the defendant in writing, that
5consent has been obtained in writing, and that the defendant has
6signed a written agreement allowing his or her buccalbegin delete swapend deletebegin insert swabend insert
7 sample or blood sample to be taken for DNA analysis.begin insert It is the
8intent of the Legislature that buccal swab samples taken as a
9condition of a plea or reduction or dismissal charges be done on
10the basis of individualized consideration.end insert

begin delete
11

SEC. 3.  

Section 295.1 of the Penal Code is amended to read:

12

295.1.  

(a) The Department of Justice shall perform DNA
13analysis and other forensic identification analysis pursuant to this
14chapter only for identification purposes.

15(b) The Department of Justice Bureau of Criminal Identification
16and Information shall perform examinations of palm prints pursuant
17to this chapter only for identification purposes.

18(c) The DNA Laboratory of the Department of Justice shall
19serve as a repository for blood specimens and buccal swab and
20other biological samples collected, and shall analyze specimens
21and samples, and store, compile, correlate, compare, maintain, and
22use DNA and forensic identification profiles and records related
23to the following:

24(1) Forensic casework and forensic unknowns.

25(2) Known and evidentiary specimens and samples from crime
26scenes or criminal investigations.

27(3) Missing or unidentified persons.

28(4) Persons required to provide specimens, samples, and print
29impressions under this chapter.

30(5) Legally obtained samples.

31(6) Anonymous DNA records used for training, research,
32statistical analysis of populations, quality assurance, or quality
33control.

34(d) The computerized data bank and database of the DNA
35Laboratory of the Department of Justice shall include files as
36 necessary to implement this chapter.

37(e) This section does not require the Department of Justice to
38provide specimens or samples for quality control or other purposes
39to those who request specimens or samples.

P5    1(f) Submission of samples, specimens, or profiles for the state
2DNA Database and Data Bank Program shall include information
3as required by the Department of Justice for ensuring search
4capabilities and compliance with National DNA Index System
5(NDIS) standards.

6(g) DNA specimens collected from a person who has been
7convicted of an offense specified in subdivision (a) of Section 296
8may be used to conduct familial searches of the DNA Database.

end delete
9

begin deleteSEC. 4.end delete
10begin insertSEC. 3.end insert  

Section 296 of the Penal Code is amended to read:

11

296.  

(a) The following persons shall provide buccal swab
12samples, right thumbprints, and a full palm print impression of
13each hand, and any blood specimens or other biological samples
14required pursuant to this chapter for law enforcement identification
15analysis:

16(1) begin insert(A)end insertbegin insertend insert Any person, including any juvenile, who is convicted
17of or pleads guilty or no contest to any felonybegin delete offense or to a
18misdemeanor offense specified in Section 29805,end delete
begin insert offense,end insert or is
19found not guilty by reason of insanity of any felonybegin delete offense or
20misdemeanor offense specified in Section 29805,end delete
begin insert offense,end insert or any
21juvenile who is adjudicated under Section 602 of the Welfare and
22Institutions Code for committing any felonybegin delete offense or a
23misdemeanor offense specified in Section 29805.end delete
begin insert offense.end insert

begin insert

24(B) Any person, not including a juvenile, who is convicted or
25pleads guilty or no contest to a misdemeanor violation of Section
26136.1, 136.5, 171b, or 186.28, subdivision (b), (c), or (d) of Section
27243, Section 243.4, 244.5, 245, 245.5, 417, 417.6, 422, 646.9,
2825300, or 32625, or subdivision (d) of Section 26100, or who is
29found not guilty by reason of insanity of any of those misdemeanor
30offenses.

end insert

31(2) Any adult person who is arrested for or charged with any of
32the following felony offenses:

33(A) Any felony offense specified in Section 290 or attempt to
34commit any felony offense described in Section 290, or any felony
35offense that imposes upon a person the duty to register in California
36as a sex offender under Section 290.

37(B) Murder or voluntary manslaughter or any attempt to commit
38murder or voluntary manslaughter.

39(C) Commencing on January 1, 2009, any adult person arrested
40or charged with any felony offense.

P6    1(3) Any person, including any juvenile, who is required to
2register under Section 290 or 457.1 because of the commission of,
3or the attempt to commit, a felony or misdemeanor offense, or any
4person, including any juvenile, who is housed in a mental health
5facility or sex offender treatment program after referral to such
6facility or program by a court after being charged with any felony
7offense.

8(4) The term “felony” as used in this subdivision includes an
9attempt to commit the offense.

10(5) This chapter does not prohibit collection and analysis of
11 specimens, samples, or print impressions as a condition of a plea
12for abegin delete non-qualifyingend deletebegin insert nonqualifyingend insert offense.

13(b) The provisions of this chapter and its requirements for
14submission of specimens, samples and print impressions as soon
15as administratively practicable shall apply to all qualifying persons
16regardless of sentence imposed, including a sentence of death, life
17without the possibility of parole, or a life or indeterminate term,
18or other disposition rendered in the case of an adult or juvenile
19tried as an adult, or whether the person is diverted, fined, or referred
20for evaluation, and regardless of disposition rendered or placement
21made in the case of juvenile who is found to have committed any
22felony offense or is adjudicated under Section 602 of the Welfare
23and Institutions Code.

24(c) The provisions of this chapter and its requirements for
25submission of specimens, samples, and print impressions as soon
26as administratively practicable by qualified persons as described
27in subdivision (a) shall apply regardless of placement or
28confinement in any mental hospital or other public or private
29treatment facility, and shall include, but not be limited to, the
30following persons, including juveniles:

31(1) Any person committed to a state hospital or other treatment
32facility as a mentally disordered sex offender under former Article
331 (commencing with Section 6300) of Chapter 2 of Part 2 of
34Division 6 of the Welfare and Institutions Code.

35(2) Any person who has a severe mental disorder as set forth
36within the provisions of Article 4 (commencing with Section 2960)
37of Chapter 7 of Title 1 of Part 3 of the Penal Code.

38(3) Any person found to be a sexually violent predator pursuant
39to Article 4 (commencing with Section 6600) of Chapter 2 of Part
402 of Division 6 of the Welfare and Institutions Code.

P7    1(d) The provisions of this chapter are mandatory and apply
2whether or not the court advises a person, including any juvenile,
3that he or she must provide the data bank and database specimens,
4samples, and print impressions as a condition of probation, parole,
5or any plea of guilty, no contest, or not guilty by reason of insanity,
6or any admission to any of the offenses described in subdivision
7(a).

8(e) If at any stage of court proceedings the prosecuting attorney
9determines that specimens, samples, and print impressions required
10by this chapter have not already been taken from any person, as
11defined under subdivision (a) of Section 296, the prosecuting
12attorney shall notify the court orally on the record, or in writing,
13and request that the court order collection of the specimens,
14samples, and print impressions required by law. However, a failure
15by the prosecuting attorney or any other law enforcement agency
16to notify the court shall not relieve a person of the obligation to
17provide specimens, samples, and print impressions pursuant to this
18chapter.

19(f) Prior to final disposition or sentencing in the case the court
20shall inquire and verify that the specimens, samples, and print
21impressions required by this chapter have been obtained and that
22this fact is included in the abstract of judgment or dispositional
23order in the case of a juvenile. The abstract of judgment issued by
24the court shall indicate that the court has ordered the person to
25comply with the requirements of this chapter and that the person
26shall be included in the state’s DNA and Forensic Identification
27begin delete Data Base and Data Bank programend deletebegin insert Database and Databank
28Programend insert
and be subject to this chapter.

29However, failure by the court to verify specimen, sample, and
30print impression collection or enter these facts in the abstract of
31judgment or dispositional order in the case of a juvenile shall not
32invalidate an arrest, plea, conviction, or disposition, or otherwise
33relieve a person from the requirements of this chapter.

begin delete
34

SEC. 5.  

Section 298 of the Penal Code is amended to read:

35

298.  

(a) The Secretary of the Department of Corrections and
36Rehabilitation, or the Chief Administrative Officer of the detention
37facility, jail, or other facility at which the blood specimens, buccal
38swab samples, and thumb and palm print impressions were
39collected shall cause these specimens, samples, and print
40impressions to be forwarded promptly to the Department of Justice,
P8    1except that a blood specimen or buccal swab sample taken from
2a person arrested for the commission of a felony as specified in
3paragraph (2) of subdivision (a) of Section 296 shall be forwarded
4to the Department of Justice after a judicial determination of
5probable cause to believe the person has committed the offense
6for which he or she was arrested has been made pursuant to Section
7 825. The specimens, samples, and print impressions shall be
8collected by a person using a Department of Justice approved
9collection kit and in accordance with the requirements and
10procedures set forth in subdivision (b).

11(b) (1) The Department of Justice shall provide all blood
12specimen vials, buccal swab collectors, mailing tubes, labels, and
13instructions for the collection of the blood specimens, buccal swab
14samples, and thumbprints. The specimens, samples, and
15thumbprints shall thereafter be forwarded to the DNA Laboratory
16of the Department of Justice for analysis of DNA and other forensic
17identification markers.

18Additionally, the Department of Justice shall provide all full
19palm print cards, mailing envelopes, and instructions for the
20collection of full palm prints. The full palm prints, on a form
21prescribed by the Department of Justice, shall thereafter be
22forwarded to the Department of Justice for maintenance in a file
23for identification purposes.

24(2) The withdrawal of blood shall be performed in a medically
25approved manner. Only health care providers trained and certified
26to draw blood may withdraw the blood specimens for purposes of
27this section.

28(3) Buccal swab samples may be procured by law enforcement
29or corrections personnel or other individuals trained to assist in
30buccal swab collection.

31(4) Right thumbprints and a full palm print impression of each
32hand shall be taken on forms prescribed by the Department of
33Justice. The palm print forms shall be forwarded to and maintained
34by the Bureau of Criminal Identification and Information of the
35Department of Justice. Right thumbprints also shall be taken at
36the time of the collection of samples and specimens and shall be
37placed on the sample and specimen containers and forms as
38directed by the Department of Justice. The samples, specimens,
39and forms shall be forwarded to and maintained by the DNA
40Laboratory of the Department of Justice.

P9    1(5) The law enforcement or custodial agency collecting
2specimens, samples, or print impressions is responsible for
3confirming that the person qualifies for entry into the Department
4of Justice DNA Database and Data Bank Program prior to
5collecting the specimens, samples, or print impressions pursuant
6to this chapter.

7(6) The DNA Laboratory of the Department of Justice is
8responsible for establishing procedures for entering data bank and
9database information.

10(c) (1) Persons authorized to draw blood or obtain samples or
11print impressions under this chapter for the data bank or database
12shall not be civilly or criminally liable either for withdrawing blood
13when done in accordance with medically accepted procedures, or
14for obtaining buccal swab samples by scraping inner cheek cells
15of the mouth, or thumb or palm print impressions when performed
16in accordance with standard professional practices.

17(2) There is no civil or criminal cause of action against any law
18enforcement agency or the Department of Justice, or any employee
19thereof, for a mistake in confirming a person’s or sample’s
20qualifying status for inclusion within the database or data bank or
21in placing an entry in a data bank or a database.

22(3) The failure of the Department of Justice or local law
23enforcement to comply with Article 4 or any other provision of
24this chapter shall not invalidate an arrest, plea, conviction, or
25disposition.

26

SEC. 6.  

Section 299 of the Penal Code is amended to read:

27

299.  

(a) A person whose DNA profile has been included in
28the data bank pursuant to this chapter shall have his or her DNA
29specimen and sample destroyed and searchable database profile
30expunged from the data bank program if the person has no past or
31present offense or pending charge which qualifies that person for
32inclusion within the state’s DNA and Forensic Identification
33Database and Data Bank Program and there otherwise is no legal
34basis for retaining the specimen or sample or searchable profile.

35(b) Pursuant to subdivision (a), a person who has no past or
36present qualifying offense, and for whom there otherwise is no
37legal basis for retaining the specimen or sample or searchable
38profile shall have his or her specimen and sample destroyed and
39searchable database profile expunged from the data bank program
40if any of the following apply:

P10   1(1) Following arrest, no accusatory pleading has been filed
2within the applicable period allowed by law charging the person
3with a qualifying offense as set forth in subdivision (a) of Section
4296 or if the charges which served as the basis for including the
5DNA profile in the state’s DNA Database and Data Bank
6Identification Program have been dismissed prior to adjudication
7 by a trier of fact, in which case the district attorney shall submit a
8letter to the Department of Justice as soon as these conditions have
9been met.

10(2) The underlying conviction or disposition serving as the basis
11for including the DNA profile has been reversed and the case
12dismissed, in which case the court shall forward its order to the
13Department of Justice upon disposition of the case.

14(3) The person has been found factually innocent of the
15underlying offense pursuant to Section 851.8, or Section 781.5 of
16the Welfare and Institutions Code, in which case the court shall
17forward its order to the Department of Justice upon disposition of
18the case.

19(4) The defendant has been found not guilty or the defendant
20has been acquitted of the underlying offense, in which case the
21court shall forward its order to the Department of Justice upon
22disposition of the case.

23(c) Except as provided in this section, the Department of Justice
24shall destroy a specimen and sample and expunge the searchable
25DNA database profile pertaining to the person who has no present
26or past qualifying offense of record upon receipt of the following:

27(1) A certified copy of the court order reversing and dismissing
28the conviction or case, or a letter from the district attorney
29certifying that no accusatory pleading has been filed or the charges
30which served as the basis for collecting a DNA specimen and
31sample have been dismissed prior to adjudication by a trier of fact,
32the defendant has been found factually innocent, the defendant has
33been found not guilty, the defendant has been acquitted of the
34underlying offense, or the underlying conviction has been reversed
35and the case dismissed.

36(2) A court order verifying that no retrial or appeal of the case
37is pending.

38(d) Upon order from the court, the Department of Justice shall
39destroy any specimen or sample collected from the person and any
40searchable DNA database profile pertaining to the person, unless
P11   1the department determines that the person is subject to the
2provisions of this chapter because of a past qualifying offense of
3record or is or has otherwise become obligated to submit a blood
4specimen or buccal swab sample as a result of a separate arrest,
5conviction, juvenile adjudication, or finding of guilty or not guilty
6by reason of insanity for an offense described in subdivision (a)
7of Section 296, or as a condition of a plea.

8The Department of Justice is not required to destroy analytical
9data or other items obtained from a blood specimen or saliva, or
10buccal swab sample, if evidence relating to another person subject
11to the provisions of this chapter would thereby be destroyed or
12otherwise compromised.

13Any identification, warrant, probable cause to arrest, or arrest
14based upon a data bank or database match is not invalidated due
15to a failure to expunge or a delay in expunging records.

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

21(f) Notwithstanding any other law, including Sections 17,
221203.4, and 1203.4a, a judge is not authorized to relieve a person
23of the separate administrative duty to provide specimens, samples,
24or print impressions required by this chapter if a person has been
25found guilty or was adjudicated a ward of the court by a trier of
26fact of a qualifying offense as defined in subdivision (a) of Section
27296, or was found not guilty by reason of insanity or pleads no
28contest to a qualifying offense as defined in subdivision (a) of
29Section 296.

end delete
30begin insert

begin insertSEC. 4.end insert  

end insert

begin insertSection 298 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

31

298.  

(a) Thebegin delete Director of Correctionsend deletebegin insert Secretary of the
32Department of Corrections and Rehabilitationend insert
, or the Chief
33Administrative Officer of the detention facility, jail, or other facility
34at which the blood specimens, buccal swab samples, and thumb
35and palm print impressions were collected shall cause these
36specimens, samples, and print impressions to be forwarded
37promptly to the Department of Justice. The specimens, samples,
38and print impressions shall be collected by a person using a
39Department of Justice approved collection kit and in accordance
40with the requirements and procedures set forth in subdivision (b).

P12   1(b) (1) The Department of Justice shall provide all blood
2specimen vials, buccal swab collectors, mailing tubes, labels, and
3instructions for the collection of the blood specimens, buccal swab
4samples, and thumbprints. The specimens, samples, and
5thumbprints shall thereafter be forwarded to the DNA Laboratory
6of the Department of Justice for analysis of DNA and other forensic
7identification markers.

8Additionally, the Department of Justice shall provide all full
9palm print cards, mailing envelopes, and instructions for the
10collection of full palm prints. The full palm prints, on a form
11prescribed by the Department of Justice, shall thereafter be
12forwarded to the Department of Justice for maintenance in a file
13for identification purposes.

14(2) The withdrawal of blood shall be performed in a medically
15 approved manner. Only health care providers trained and certified
16to draw blood may withdraw the blood specimens for purposes of
17this section.

18(3) Buccal swab samples may be procured by law enforcement
19or corrections personnel or other individuals trained to assist in
20buccal swab collection.

21(4) Right thumbprints and a full palm print impression of each
22hand shall be taken on forms prescribed by the Department of
23Justice. The palm print forms shall be forwarded to and maintained
24by the Bureau of Criminal Identification and Information of the
25Department of Justice. Right thumbprints also shall be taken at
26the time of the collection of samples and specimens and shall be
27placed on the sample and specimen containers and forms as
28directed by the Department of Justice. The samples, specimens,
29and forms shall be forwarded to and maintained by the DNA
30Laboratory of the Department of Justice.

31(5) The law enforcement or custodial agency collecting
32specimens, samples, or print impressions is responsible for
33confirming that the person qualifies for entry into the Department
34of Justice DNA Database andbegin delete Data Bankend deletebegin insert Databankend insert Program prior
35to collecting the specimens, samples, or print impressions pursuant
36to this chapter.

37(6) The DNA Laboratory of the Department of Justice is
38responsible for establishing procedures for enteringbegin delete data bankend delete
39begin insert databankend insert and database information.

P13   1(c) (1) Persons authorized to draw blood or obtain samples or
2print impressions under this chapter for thebegin delete data bankend deletebegin insert databankend insert or
3database shall not be civilly or criminally liable either for
4withdrawing blood when done in accordance with medically
5accepted procedures, or for obtaining buccal swab samples by
6scraping inner cheek cells of the mouth, or thumb or palm print
7impressions when performed in accordance with standard
8professional practices.

9(2) There is no civil or criminal cause of action against any law
10enforcement agency or the Department of Justice, or any employee
11thereof, for a mistake in confirming a person’s or sample’s
12qualifying status for inclusion within the database orbegin delete data bankend delete
13begin insert databankend insert or in placing an entry in abegin delete data bankend deletebegin insert databankend insert or a
14database.

15(3) The failure of the Department of Justice or local law
16enforcement to comply with Article 4 or any other provision of
17this chapter shall not invalidate an arrest, plea, conviction, or
18disposition.

begin insert

19(d) This section shall become inoperative if the California
20Supreme Court rules to uphold the California Court of Appeal
21decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
22to the provisions of Section 298 of the Penal Code, as amended
23by Section 6 of the DNA Fingerprint, Unsolved Crime and
24Innocence Protection Act, Proposition 69, approved by the voters
25at the November 2, 2004, statewide general election, in which case
26this section shall become inoperative immediately upon that ruling
27becoming final.

end insert
28begin insert

begin insertSEC. 5.end insert  

end insert

begin insertSection 298 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert

begin insert
29

begin insert298.end insert  

(a) (1) The Secretary of the Department of Corrections
30and Rehabilitation, or the Chief Administrative Officer of the
31detention facility, jail, or other facility at which the blood
32specimens, buccal swab samples, and thumb and palm print
33impressions were collected shall cause these specimens, samples,
34and print impressions to be forwarded promptly to the Department
35of Justice, except that a blood specimen or buccal swab sample
36taken from a person arrested for the commission of a felony as
37specified in paragraph (2) of subdivision (a) of Section 296 shall
38be forwarded to the Department of Justice after a judicial
39determination of probable cause to believe the person has
40committed the offense for which he or she was arrested has been
P14   1made pursuant to Section 825. The specimens, samples, and print
2impressions shall be collected by a person using a Department of
3Justice approved collection kit and in accordance with the
4requirements and procedures set forth in subdivision (b).

5(2) A blood specimen or buccal swab sample taken from a
6person arrested for the commission of a felony as specified in
7paragraph (2) of subdivision (a) of Section 296 that has not been
8forwarded to the Department of Justice within six months following
9the arrest of that person because the agency that took the blood
10specimen or buccal swab sample has not received notice to forward
11the DNA specimen or sample to the Department of Justice for
12inclusion in the state’s DNA and Forensic Identification Database
13and Databank Program pursuant to paragraph (1) following a
14determination of probable cause, shall be destroyed by the agency
15that collected the blood specimen or buccal swab sample.

16(b) (1) The Department of Justice shall provide all blood
17specimen vials, buccal swab collectors, mailing tubes, labels, and
18instructions for the collection of the blood specimens, buccal swab
19samples, and thumbprints. The specimens, samples, and
20thumbprints shall thereafter be forwarded to the DNA Laboratory
21of the Department of Justice for analysis of DNA and other forensic
22identification markers.

23Additionally, the Department of Justice shall provide all full
24palm print cards, mailing envelopes, and instructions for the
25collection of full palm prints. The full palm prints, on a form
26prescribed by the Department of Justice, shall thereafter be
27forwarded to the Department of Justice for maintenance in a file
28for identification purposes.

29(2) The withdrawal of blood shall be performed in a medically
30approved manner. Only health care providers trained and certified
31to draw blood may withdraw the blood specimens for purposes of
32this section.

33(3) Buccal swab samples may be procured by law enforcement
34or corrections personnel or other individuals trained to assist in
35buccal swab collection.

36(4) Right thumbprints and a full palm print impression of each
37hand shall be taken on forms prescribed by the Department of
38Justice. The palm print forms shall be forwarded to and maintained
39by the Bureau of Criminal Identification and Information of the
40Department of Justice. Right thumbprints also shall be taken at
P15   1the time of the collection of samples and specimens and shall be
2placed on the sample and specimen containers and forms as
3directed by the Department of Justice. The samples, specimens,
4and forms shall be forwarded to and maintained by the DNA
5Laboratory of the Department of Justice.

6(5) The law enforcement or custodial agency collecting
7specimens, samples, or print impressions is responsible for
8confirming that the person qualifies for entry into the Department
9of Justice DNA and Forensic Identification Database and Databank
10Program prior to collecting the specimens, samples, or print
11impressions pursuant to this chapter.

12(6) The DNA Laboratory of the Department of Justice is
13responsible for establishing procedures for entering databank and
14database information.

15(c) (1) Persons authorized to draw blood or obtain samples or
16print impressions under this chapter for the databank or database
17shall not be civilly or criminally liable either for withdrawing
18blood when done in accordance with medically accepted
19procedures, or for obtaining buccal swab samples by scraping
20inner cheek cells of the mouth, or thumb or palm print impressions
21when performed in accordance with standard professional
22practices.

23(2) There is no civil or criminal cause of action against any law
24enforcement agency or the Department of Justice, or any employee
25thereof, for a mistake in confirming a person’s or sample’s
26qualifying status for inclusion within the database or databank or
27in placing an entry in a databank or a database.

28(3) The failure of the Department of Justice or local law
29enforcement to comply with Article 4 or any other provision of
30this chapter shall not invalidate an arrest, plea, conviction, or
31disposition.

32(d) This section shall only become operative if the California
33Supreme Court rules to uphold the California Court of Appeal
34decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
35to the provisions of Section 298 of the Penal Code, as amended
36by Section 6 of the DNA Fingerprint, Unsolved Crime and
37Innocence Protection Act, Proposition 69, approved by the voters
38at the November 2, 2004, statewide general election, in which case
39this section shall become operative immediately upon that ruling
40becoming final.

end insert
P16   1begin insert

begin insertSEC. 6.end insert  

end insert

begin insertSection 299 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

2

299.  

(a) A person whose DNA profile has been included in
3thebegin delete data bankend deletebegin insert databankend insert pursuant to this chapter shall have his or
4her DNA specimen and sample destroyed and searchable database
5profile expunged from thebegin delete data bankend deletebegin insert databankend insert program pursuant
6to the procedures set forth in subdivision (b) if the person has no
7past or present offense or pending charge which qualifies that
8person for inclusion within the state’s DNA and Forensic
9Identification Database andbegin delete Data Bankend deletebegin insert Databankend insert Program and
10there otherwise is no legal basis for retaining the specimen or
11sample or searchable profile.

12(b) Pursuant to subdivision (a), a person who has no past or
13present qualifying offense, and for whom there otherwise is no
14legal basis for retaining the specimen or sample or searchable
15profile, may make a written request to have his or her specimen
16and sample destroyed and searchable database profile expunged
17from thebegin delete data bankend deletebegin insert databankend insert program ifbegin insert any of the following applyend insert:

18(1) Following arrest, no accusatory pleading has been filed
19within the applicable period allowed by law charging the person
20with a qualifying offense as set forth in subdivision (a) of Section
21296 or if the charges which served as the basis for including the
22DNA profile in the state’s DNAbegin insert and Forensic Identificationend insert
23 Database andbegin delete Data Bank Identificationend deletebegin insert Databankend insert Program have
24been dismissed prior to adjudication by a trier of fact;

25(2) The underlying conviction or disposition serving as the basis
26for including the DNA profile has been reversed and the case
27dismissed;

28(3) The person has been found factually innocent of the
29underlying offense pursuant to Section 851.8, or Section 781.5 of
30the Welfare and Institutions Code; or

31(4) The defendant has been found not guilty or the defendant
32has been acquitted of the underlying offense.

33(c) (1) The person requesting thebegin delete data bankend deletebegin insert databankend insert entry to
34be expunged must send a copy of his or her request to the trial
35court of the county where the arrest occurred, or that entered the
36conviction or rendered disposition in the case, to the DNA
37Laboratory of the Department of Justice, and to the prosecuting
38attorney of the county in which he or she was arrested or,
39convicted, or adjudicated, with proof of service on all parties. The
40court has the discretion to grant or deny the request for
P17   1expungement. The denial of a request for expungement is a
2nonappealable order and shall not be reviewed by petition for writ.

3(2) Except as providedbegin delete belowend deletebegin insert in this sectionend insert, the Department
4of Justice shall destroy a specimen and sample and expunge the
5searchable DNA database profile pertaining to the person who has
6no present or past qualifying offense of record upon receipt of a
7court order that verifies the applicant has made the necessary
8showing at a noticed hearing, and that includes all of the following:

9(A) The written request for expungement pursuant to this
10section.

11(B) A certified copy of the court order reversing and dismissing
12the conviction or case, or a letter from the district attorney
13certifying that no accusatory pleading has been filed or the charges
14which served as the basis for collecting a DNA specimen and
15sample have been dismissed prior to adjudication by a trier of fact,
16the defendant has been found factually innocent, the defendant has
17been found not guilty, the defendant has been acquitted of the
18underlying offense, or the underlying conviction has been reversed
19and the case dismissed.

20(C) Proof of written notice to the prosecuting attorney and the
21Department of Justice that expungement has been requested.

22(D) A court order verifying that no retrial or appeal of the case
23is pending, that it has been at least 180 days since the defendant
24or minor has notified the prosecuting attorney and the Department
25of Justice of the expungement request, and that the court has not
26received an objection from the Department of Justice or the
27prosecuting attorney.

28(d) Upon order from the court, the Department of Justice shall
29destroy any specimen or sample collected from the person and any
30searchable DNA database profile pertaining to the person, unless
31the department determines that the person is subject to the
32provisions of this chapter because of a past qualifying offense of
33record or is or has otherwise become obligated to submit a blood
34specimen or buccal swab sample as a result of a separate arrest,
35conviction, juvenile adjudication, or finding of guilty or not guilty
36by reason of insanity for an offense described in subdivision (a)
37of Section 296, or as a condition of a plea.

38The Department of Justice is not required to destroy analytical
39data or other items obtained from a blood specimen or saliva, or
40buccal swab sample, if evidence relating to another person subject
P18   1to the provisions of this chapter would thereby be destroyed or
2otherwise compromised.

3Any identification, warrant, probable cause to arrest, or arrest
4based upon abegin delete data bankend deletebegin insert databankend insert or database match is not
5invalidated due to a failure to expunge or a delay in expunging
6records.

7(e) Notwithstanding any otherbegin delete provision ofend delete law, the Department
8of Justice DNA Laboratory is not required to expunge DNA profile
9or forensic identification information or destroy or return
10specimens, samples, or print impressions taken pursuant to this
11section if the duty to register under Section 290 or 457.1 is
12terminated.

13(f) Notwithstanding any otherbegin delete provision ofend delete law, including
14Sections 17, 1203.4, and 1203.4a, a judge is not authorized to
15relieve a person of the separate administrative duty to provide
16specimens, samples, or print impressions required by this chapter
17if a person has been found guilty or was adjudicated a ward of the
18court by a trier of fact of a qualifying offense as defined in
19subdivision (a) of Section 296, or was found not guilty by reason
20of insanity or pleads no contest to a qualifying offense as defined
21in subdivision (a) of Section 296.

begin insert

22(g) This section shall become inoperative if the California
23Supreme Court rules to uphold the California Court of Appeal
24decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
25to the provisions of Section 299 of the Penal Code, as amended
26by Section 9 of the DNA Fingerprint, Unsolved Crime and
27Innocence Protection Act, Proposition 69, approved by the voters
28at the November 2, 2004, statewide general election, in which case
29this section shall become inoperative immediately upon that ruling
30becoming final.

end insert
31begin insert

begin insertSEC. 7.end insert  

end insert

begin insertSection 299 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert

begin insert
32

begin insert299.end insert  

(a) A person whose DNA profile has been included in the
33databank pursuant to this chapter shall have his or her DNA
34specimen and sample destroyed and searchable database profile
35expunged from the databank program if the person has no past or
36present offense or pending charge which qualifies that person for
37inclusion within the state’s DNA and Forensic Identification
38Database and Databank Program and there otherwise is no legal
39basis for retaining the specimen or sample or searchable profile.

P19   1(b) Pursuant to subdivision (a), a person who has no past or
2present qualifying offense, and for whom there otherwise is no
3legal basis for retaining the specimen or sample or searchable
4profile shall have his or her specimen and sample destroyed and
5 searchable database profile expunged from the databank program
6if any of the following apply:

7(1) Following arrest, no accusatory pleading has been filed
8within the applicable period allowed by law charging the person
9with a qualifying offense as set forth in subdivision (a) of Section
10296 or if the charges which served as the basis for including the
11DNA profile in the state’s DNA and Forensic Identification
12Database and Databank Program have been dismissed prior to
13adjudication by a trier of fact, in which case the district attorney
14shall submit a letter to the Department of Justice as soon as these
15conditions have been met.

16(2) The underlying conviction or disposition serving as the basis
17for including the DNA profile has been reversed and the case
18dismissed, in which case the court shall forward its order to the
19Department of Justice upon disposition of the case.

20(3) The person has been found factually innocent of the
21underlying offense pursuant to Section 851.8, or Section 781.5 of
22the Welfare and Institutions Code, in which case the court shall
23forward its order to the Department of Justice upon disposition
24of the case.

25(4) The defendant has been found not guilty or the defendant
26has been acquitted of the underlying offense, in which case the
27court shall forward its order to the Department of Justice upon
28disposition of the case.

29(c) Except as provided in this section, the Department of Justice
30shall destroy a specimen and sample and expunge the searchable
31DNA database profile pertaining to the person who has no present
32or past qualifying offense of record upon receipt of the following:

33(1) A certified copy of the court order reversing and dismissing
34the conviction or case, or a letter from the district attorney
35certifying that no accusatory pleading has been filed or the charges
36which served as the basis for collecting a DNA specimen and
37sample have been dismissed prior to adjudication by a trier of
38fact, the defendant has been found factually innocent, the defendant
39has been found not guilty, the defendant has been acquitted of the
P20   1underlying offense, or the underlying conviction has been reversed
2and the case dismissed.

3(2) A court order verifying that no retrial or appeal of the case
4is pending.

5(d) Upon order from the court, the Department of Justice shall
6destroy any specimen or sample collected from the person and any
7searchable DNA database profile pertaining to the person, unless
8the department determines that the person is subject to the
9provisions of this chapter because of a past qualifying offense of
10record or is or has otherwise become obligated to submit a blood
11specimen or buccal swab sample as a result of a separate arrest,
12conviction, juvenile adjudication, or finding of guilty or not guilty
13by reason of insanity for an offense described in subdivision (a)
14of Section 296, or as a condition of a plea.

15The Department of Justice is not required to destroy analytical
16data or other items obtained from a blood specimen or saliva, or
17buccal swab sample, if evidence relating to another person subject
18to the provisions of this chapter would thereby be destroyed or
19otherwise compromised.

20Any identification, warrant, probable cause to arrest, or arrest
21based upon a databank or database match is not invalidated due
22to a failure to expunge or a delay in expunging records.

23(e) Notwithstanding any other law, the Department of Justice
24DNA Laboratory is not required to expunge DNA profile or
25forensic identification information or destroy or return specimens,
26samples, or print impressions taken pursuant to this section if the
27duty to register under Section 290 or 457.1 is terminated.

28(f) Notwithstanding any other law, including Sections 17, 1203.4,
29and 1203.4a, a judge is not authorized to relieve a person of the
30separate administrative duty to provide specimens, samples, or
31print impressions required by this chapter if a person has been
32found guilty or was adjudicated a ward of the court by a trier of
33fact of a qualifying offense as defined in subdivision (a) of Section
34296, or was found not guilty by reason of insanity or pleads no
35contest to a qualifying offense as defined in subdivision (a) of
36Section 296.

37(g) This section shall only become operative if the California
38Supreme Court rules to uphold the California Court of Appeal
39decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
40to the provisions of Section 299 of the Penal Code, as amended
P21   1by Section 9 of the DNA Fingerprint, Unsolved Crime and
2Innocence Protection Act, Proposition 69, approved by the voters
3at the November 2, 2004, statewide general election, in which case
4this section shall become operative immediately upon that ruling
5becoming final.

end insert
6

begin deleteSEC. 7.end delete
7begin insertSEC. 8.end insert  

Section 300 of the Penal Code is amended to read:

8

300.  

begin insert(a)end insertbegin insertend insert This chapter does not limit or abrogate any existing
9authority of law enforcement officers to take, maintain, store, and
10utilize DNA or forensic identification markers, blood specimens,
11buccal swab samples, saliva samples, or thumb or palm print
12impressions for identification purposes.begin delete A law enforcement agency
13may use any publicly available database to aid in the investigation
14of a crime.end delete

begin insert

15(b) A law enforcement agency may use a publicly available
16database, excluding a law enforcement database that is not linked
17to the Combined DNA Index System (CODIS), if the case being
18investigated involves a homicide or sexual assault involving force
19and the case is unsolved and all investigative leads have been
20exhausted, in which case the law enforcement agency shall review
21nonforensic information in order to identify additional evidence
22bearing on relatedness.

end insert
23

begin deleteSEC. 8.end delete
24begin insertSEC. 9.end insert  

If the Commission on State Mandates determines that
25this act contains costs mandated by the state, reimbursement to
26local agencies and school districts for those costs shall be made
27pursuant to Part 7 (commencing with Section 17500) of Division
284 of Title 2 of the Government Code.



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