BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      AB 84


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          Date of Hearing:  April 14, 2015 
          Counsel:               David Billingsley



                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                      84 (Gatto) - As Introduced  January 6, 2015


                       As Proposed to be Amended in Committee


                                       REVISED
                                          
          SUMMARY:    Expands the collection of DNA samples to include  
          persons convicted of specified misdemeanors.  Authorizes samples  
          collected during felony arrests to be forwarded to Department of  
          Justice (DOJ) upon a judicial finding of probable cause.  Allows  
          law enforcement to access publicly available databases.   
          Specifically, this bill:


          1)Requires adults who have been convicted of specified serious  
            misdemeanors to provide DNA samples.





          2)Requires that DNA samples obtained during an arrest on a  
            felony not be sent to Department of Justice for analysis until  
            after a judicial determination of probable cause, operative if  
            the California Supreme Court upholds the case of People v.  








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            Buza, review granted February 18, 2015, S223698.





          3)Establishes procedure for a person's DNA sample and searchable  
            database profile to be expunged if the case is dismissed, or  
            the accused is acquitted, or otherwise exonerated, and the  
            person has no past qualifying offense, without the requirement  
            of an application from the person, operative if the California  
            Supreme Court upholds the case of People v. Buza, review  
            granted February 18, 2015, S223698. If Buza is upheld, any of  
            the following apply.





             a)   Law enforcement has not received notice that a court has  
               found probable cause for a qualifying offense. Or if the  
               charges which served as the basis for including the DNA  
               profile in the state's DNA Database and Data Bank  
               Identification Program have been dismissed by to  
               adjudication by a trier of fact, in which case the district  
               attorney shall submit a letter to the Department of Justice  
               as soon as these conditions have been met.





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













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             c)   The person has been found factually innocent of the  
               underlying offense, in which case the court shall forward  
               its order to the Department of Justice upon disposition of  
               the case.





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








          4)Allows law enforcement agency to use any publicly available  
            database, excluding any non CODIS  law enforcement databases,  
            if (1) the case involves a homicide or a sexual assault  
            involving force; (2) the case is unsolved and all  
            investigative leads have been exhausted;  (3) the law  
            enforcement agency must review non-forensic information in  
            order to identify additional evidence bearing on relatedness. 



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



             a)   Any person, including any juvenile, who is convicted of  








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               or pleads guilty or no contest to any felony offense, or is  
               found not guilty by reason of insanity of any felony  
               offense, or any juvenile where a court has found that they  
               have committed any felony offense. (Pen. Code, § 296, subd.  
               (a)(1).)



             b)   Any adult person who is arrested for or charged with a  
               felony offense. (Pen. Code, § 296, subd. (a)(2)(C).)



             c)   Any person, including any juvenile, who is required to  
               register as a sex offender or arson offender  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  
               program by a court after being charged with any felony  
               offense. (Pen. Code, § 296, subd. (a)(3).)



          2)The term "felony" includes an attempt to commit the offense.  
            (Pen. Code, § 296, subd. (a)(4).)



          3)Allows the collection and analysis of specimens, samples, or  
            print impressions as a condition of a plea for a  
            non-qualifying offense. (Pen. Code, § 296, subd. (a)(5).)



          4)Requires submission of specimens, samples, and print  
            impressions as soon as administratively practicable by  
            qualified persons and shall apply regardless of placement or  
            confinement in any mental hospital or other public or private  
            treatment facility, and shall include, but not be limited to,  
            the following persons, including juveniles (Pen. Code, § 296,  
            subd. (c).)








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             a)   Any person committed to a state hospital or other  
               treatment facility as a mentally disordered sex offender.  
               (Pen. Code, § 296, subd. (c)(1).)



             b)   Any person who is designated a mentally ordered  
               offender. (Pen. Code, § 296, subd. (c)(2).)



             c)   Any person found to be a sexually violent predator.  
               (Pen. Code, § 296, subd. (c)(3).)



          5)Specifies that the court shall inquire and verify, prior to  
            final disposition or sentencing in the case, that the  
            specimens, samples, and print impressions have been obtained  
            and that this fact is included in the abstract of judgment or  
            dispositional order in the case of a juvenile. (Pen. Code, §  
            296, subd. (f).)



          6)Provides that failure by the court to verify specimen, sample,  
            and print impression collection or enter these facts in the  
            abstract of judgment or dispositional order in the case of a  
            juvenile shall not invalidate an arrest, plea, conviction, or  
            disposition, or otherwise relieve a person from the  
            requirements to provide samples. (Pen. Code, § 296, subd.  
            (f).)
             


          7)Provides that The Department of Justice(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  








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            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).)



          8)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).)



          9)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 (Pen. Code, § 295.1, subd.  
            (c).):



             a)   Forensic casework and forensic unknowns. (Pen. Code, §  
               295.1, subd. (c)(1).)



             b)   Known and evidentiary specimens and samples from crime  
               scenes or criminal investigations. (Pen. Code, § 295.1,  
               subd. (c)(2).)



             c)   Missing or unidentified persons. (Pen. Code, § 295.1,  
               subd. (c)(3).)











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             d)   Persons required to provide specimens, samples, and  
               print impressions. (Pen. Code, § 295.1, subd. (c)(4).)



             e)   Legally obtained samples. (Pen. Code, § 295.1, subd.  
               (c)(5).)



             f)   Anonymous DNA records used for training, research,  
               statistical analysis of populations, quality assurance, or  
               quality control. (Pen. Code, § 295.1, subd. (c)(6).)



          10)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. (Pen. Code, § 299.5, subd.  
            (a).)



          11)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).)



          12)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  








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            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).)



          13)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).)



          14)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  
            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).)



          15)Specifies the Director of Corrections, or the Chief  
            Administrative Officer of the detention facility, jail, or  
            other facility at which the blood specimens, buccal swab  








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            samples, and thumb and palm print impressions were collected  
            send them promptly to the Department of Justice.(Pen. Code, §  
            298.)



          16)Requires the DNA Laboratory of DOJ to establish procedures  
            for entering data bank and database information. (Cal. Penal  
            Code § 298(b)(6).)





          17) Specifies that a person whose DNA profile has been included  
            in the data bank pursuant to this chapter shall have his or  
            her DNA specimen and sample destroyed and searchable database  
            profile expunged from the data bank program if the person has  
            no past or present offense or pending charge which qualifies  
            that person for inclusion within the state's DNA and Forensic  
            Identification Database and Data Bank Program and there  
            otherwise is no legal basis for retaining the specimen or  
            sample or searchable profile. (Cal. Pen. Code § 299, subd.  
            (b).)






             a)   Following arrest, no accusatory pleading has been filed  
               within the applicable period allowed by law charging the  
               person with a qualifying offense as set forth in  
               subdivision (a) of Section 296 or if the charges which  
               served as the basis for including the DNA profile in the  
               state's DNA Database and Data Bank Identification Program  
               have been dismissed prior to adjudication by a trier of  
               fact (Pen. Code, § 299, subd.(b)(1).); or 












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             b)   The underlying conviction or disposition serving as the  
               basis for including the DNA profile has been reversed and  
               the case dismissed (Pen. Code, § 299, subd.(b)(2).),; or, 





             c)   The person has been found factually innocent of the  
               underlying offense pursuant to Section 851.8, or Section  
               781.5 of the Welfare and Institutions Code (Pen. Code, §  
               299, subd.(b)(3).); or, 





             d)   The defendant has been found not guilty or the defendant  
               has been acquitted of the underlying offense. (Pen. Code, §  
               299, subd.(b)(4).)



          18)Requires the person requesting the data bank entry to be  
            expunged send a copy of his or her request to the trial court  
            of the county where the arrest occurred, or that entered the  
            conviction or rendered disposition in the case, to the DNA  
            Laboratory of the Department of Justice, and to the  
            prosecuting attorney of the county in which he or she was  
            arrested or, convicted, or adjudicated, with proof of service  
            on all parties. The court has the discretion to grant or deny  
            the request for expungement. The denial of a request for  
            expungement is a nonappealable order and shall not be reviewed  
            by petition for writ. (Pen. Code, § 299, subd. (c)(1).)



          19)Requires DOJ destroy a specimen and sample and expunge the  
            searchable DNA database profile pertaining to the person who  
            has no present or past qualifying offense of record upon  
            receipt of a court order that verifies the applicant has made  








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            the necessary showing at a noticed hearing, and that includes  
            all of the following (Pen. Code, § 299, subd. (c)(2).):  



             a)   The written request for expungement pursuant to this  
               section. (Pen. Code, § 299, subd.(c)(2)(A).);





             b)   A certified copy of the court order reversing and  
               dismissing the conviction or case, or a letter from the  
               district attorney certifying that no accusatory pleading  
               has been filed or the charges which served as the basis for  
               collecting a DNA specimen and sample have been dismissed  
               prior to adjudication by a trier of fact, the defendant has  
               been found factually innocent, the defendant has been found  
               not guilty, the defendant has been acquitted of the  
               underlying offense, or the underlying conviction has been  
               reversed and the case dismissed. (Pen. Code, § 299,  
               subd.(c)(2)(B).)





             c)   Proof of written notice to the prosecuting attorney and  
               the Department of Justice that expungement has been  
               requested. (Pen. Code, § 299, subd.(c)(2)(C).)





             d)   A court order verifying that no retrial or appeal of the  
               case is pending, that it has been at least 180 days since  
               the defendant or minor has notified the prosecuting  
               attorney and the Department of Justice of the expungement  
               request, and that the court has not received an objection  
               from the Department of Justice or the prosecuting attorney  








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               . (Pen. Code, § 299, subd.(c)(2)(D).)





          20)States that the Department of Justice shall destroy not any  
            specimen or sample collected from the person and any  
            searchable DNA database profile pertaining to the person, if  
            department determines that the person is subject to the  
            provisions of this chapter because of a past qualifying  
            offense of record or is or has otherwise become obligated to  
            submit a blood specimen or buccal swab sample as a result of a  
            separate arrest, conviction, juvenile adjudication, or finding  
            of guilty or not guilty by reason of insanity for an offense  
            described in subdivision (a) of Section 296, or as a condition  
            of a plea. (Pen. Code, § 299, subd. (d).)





          21)The Department of Justice is not required to destroy  
            analytical data or other items obtained from a blood specimen  
            or saliva, or buccal swab sample, if evidence relating to  
            another person subject to the provisions of this chapter would  
            thereby be destroyed or otherwise compromised. (Pen. Code, §  
            299, subd. (d).)








          22) States that a judge is not authorized to relieve a person of  
            the separate administrative duty to provide specimens,  
            samples, or print impressions required, including reduction to  
            a misdemeanor(Cal. Penal Code § 17.), or dismissal following  
            conviction. (Cal. Penal Code §§ 1203.4, 1203.4a.) (Cal. Penal  
            Code § 299(f).)








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          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "AB 84 will  
            ensure that California has a back-up DNA collection process in  
            place, while the California Supreme Court considers People v.  
            Buza.  DNA collection from felony arrestees was halted during  
            the months between the lower court's decision and the  
            California Supreme Court granting review of the Buza decision  
            and AB 84 seeks to ensure that there is a system for DNA  
            collection from felony arrestees in place should the  
            California Supreme Court uphold the lower court's decision.   
            AB 84 would provide for DNA collection of those charged with a  
            serious felony (rather than every felony, as is currently  
            being decided in the Buza case), thus furthering the voters'  
            intent in passing Proposition 69 and creating parity between  
            California's DNA collection laws and those upheld by the US  
            Supreme Court.  It strikes a careful balance by enhancing law  
            enforcement's ability to fully utilize the tools necessary to  
            solve crimes, while ensuring for the protection of  
            Californians' constitutional rights.  DNA testing is crucial  
            to our ability to solve crimes, and AB 84 strives to make sure  
            that best practices are implemented, the constitution is  
            respected, the innocent are exonerated, and the guilty are  
            brought to justice."

          2)People v. Buza.  Presently pending before the California  
            Supreme Court is People v. Buza, review granted February 18,  
            2015, S223698.  At issue in Buza was the legality of  
            California's DNA collection from arrestees on felony offenses.  
            (Prosition 69 (2004).) The Buza court found the California DNA  
            scheme unconstitutional. In finding Proposition 69 invalid,  
            the Appellate Court focused on the fact that the California  
            Supreme Court has found that article I, section 13, of the  
            California Constitution as imposing a "more exacting standard"  
            than the equivalent language found in the Fourth Amendment of  
            the U.S. Constitution. People v. Ruggles (1985) 39 Cal.3d 1,  
            11-12, People v. Brisendine (1975) 13 Cal.3d 528, 545. The  








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            court in Buza held 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 language of  
            article I, section 13, of the California Constitution mirrors  
            the language contained in the Fourth Amendment of the U.S.  
            Constitution regarding the right to be free from unreasonable  
            search and seizure.

            The court in Buza stated,  ". . ., the fact that DNA is  
            collected and analyzed immediately after arrest means that  
            some of the arrestees subjected to collection will never be  
            charged, much less convicted, of any crime-and, therefore,  
            that the governmental interest in DNA collection is  
            inapplicable while the privacy interest is effectively that of  
            an ordinary citizen.  The absence of automatic expungement  
            procedures increases the privacy intrusion because DNA  
            profiles and samples are likely to remain available to the  
            government for some period of time after the justification for  
            their collection has disappeared, potentially indefinitely.   
            And the fact that familial DNA searches are not prohibited  
            means that the act would permit intrusion into the privacy  
                                                                                      interests of arrestees' biological relatives if the DOJ were  
            to alter its current policy of not using arrestees' DNA for  
            such searches."

            The Buza case is under review by the California Supreme Court.  
             Because the case is under review it has no authority, or  
            value as precedent.  As such, Proposition 69 continues to be  
            the law in California.  DNA samples continue to be taken,  
            stored, and tested as in the manner laid out by Proposition  
            69.  It is unclear when the Supreme Court will issue a  
            decision in the Buza case.  The case is currently being  
            briefed.  The Supreme Court has wide latitude in setting the  
            briefing schedule and establishing a date for argument.

            "In California, the burdened group includes not only those  
            ultimately acquitted of criminal conduct but also those never  
            even charged.  The percentage of arrestees potentially  








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            affected in the latter way is not small: Statistics published  
            by the DOJ indicate that in 2012, 62 percent of felony  
            arrestees who were not ultimately convicted-almost 20 percent  
            of total felony arrestees-were never even charged with a  
            crime.  People v. Buza (2014) 231 Cal.app.4th 1446,187 (citing  
            Crime in California, California DOJ (2012) at 49.)




          3)California DNA Database:  The profile derived from the DNA  
            sample is uploaded into the state's DNA databank, which is  
            part of the national Combined DNA Index System (CODIS), and  
            can be accessed by local, state and federal law enforcement  
            agencies and officials. When a DNA profile is uploaded, it is  
            compared to profiles contained in the Convicted Offender and  
            Arrestee Indices; if there is a "hit," the laboratory conducts  
            procedures to confirm the match and, if confirmed, obtains the  
            identity of the suspect. The uploaded profile is also compared  
            to crime scene profiles contained in the Forensic Index;  
            again, if there is a hit, the match is confirmed by the  
            laboratory. CODIS also performs weekly searches of the entire  
            system. In CODIS, the profile does not include the name of the  
            person from whom the DNA was collected or any case-related  
            information, but only a specimen identification number, an  
            identifier for the agency that provided the sample, and the  
            name of the personnel associated with the analysis. CODIS is a  
            massive computer system which connects federal, state, and  
            local DNA databanks. CODIS is also the name of the related  
            computer software program. CODIS's national component is the  
            National DNA Index System (NDIS), the receptacle for all DNA  
            profiles submitted by federal, state, and local forensic  
            laboratories. DNA profiles typically originate at the Local  
            DNA Index System (LDIS), then migrate to the State DNA Index  
            System (SDIS), containing forensic profiles analyzed by local  
            and state laboratories, and then to NDIS.
          4)Proposition 69:  Proposition 69 was passed by the voters in  
            2004.  That proposition expanded the categories of people  
            required to provide DNA samples for law enforcement  
            identification analysis to include any adult person arrested  
            or charged with any felony offense.  The language of the  
            proposition included a Section V related to amendments  to the  








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            proposition which states: 

               The provisions of this measure may be amended by a statute  
               that is passed by each house of the Legislature and signed  
               by the Governor.  All amendments to this measure shall be  
               to further the measure and shall be consistent with is  
               purposes to enhance the use of DNA identification evidence  
               for the purpose of accurate and expeditious crime solving  
               and exonerating the innocent.

          5)Proposed Amendments:  The introduced version of the bill would  
            have gone into effect immediately.  The proposed amendments  
            includes language which makes the requirement of a probable  
            finding prior to a DNA sample being forwarded to DOJ dependent  
            on a ruling by the California Supreme Court to uphold People  
            v. Buza, review granted February 18, 2015, S223698. The  
            proposed amendments contain the same contingency language  
            regarding Buza with respect to the implementation of the DNA  
            expungement process described in the bill.  The proposed  
            amendments narrows the list of misdemeanors which would  
            require a DNA sample to be provided upon conviction.  The  
            requirement for DNA to be provided upon conviction of the  
            specified misdemeanors would be effective upon enactment.
            
            Arguments in support and opposition were submitted prior to  
            proposed amendments.

          6)Argument in Support:  According to Law Center to Prevent Gun  
            Violence, "Under existing California law, the DNA Act requires  
            a person who has been convicted of a felony offense to provide  
            buccal swab samples, right thumbprints, a full palm print  
            impression of each hand, and any blood specimens or other  
            biological samples required for law enforcement identification  
            analysis

            "AB 84 would, among other things, extend these requirement to  
            any person who has been convicted of a misdemeanor to which  
            the 10-year prohibition on the possession of a firearm  
            applies.  These misdemeanor offenses include crimes such as  
            sexual battery, assault, stalking, and threatening public  
            officials.  The use of DNA data provides law enforcement with  
            a valuable tool for identifying criminal offenders, and it  








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            makes sense to extend the collection of this data to  
            individuals who have committed crimes serious enough to  
            subject them to the 10-year firearm prohibition."

          7)Argument in Opposition:  According to California Attorneys for  
            Criminal Justice, "This bill proposes collecting DNA from  
            people arrested for minor crimes, like Penal code Section 240.  
             It also proposes collecting DNA from people merely arrested,  
            rather than convicted of crimes. While your office's talking  
            points on this bill states that the bill is in response to  
            "People v. Buza, and seeks to bring California law into line  
            with the U.S. Supreme Court's decision in Maryland v. King,  
            these talking points are outdated, and misguided, in several  
            respects.

            "First, The Buza decision is currently under review by the  
            California Supreme Court.  Any law passed prior to the  
            ultimate outcome in Buza is premature, as the final decision  
            in Buza could either eliminate the need for AB 84, or conflict  
            with it.

            "Secondly, Maryland v. King was a 5-4 decision.  The Maryland  
            law, which was narrowly upheld, allowed collection of DNA from  
            people arrested in Maryland for a very narrow class of  
            serious, violent felonies.  By contrast, your bill seeks to  
            collect DNA samples from California citizens merely arrested  
            for very minor crimes, including a misdemeanor violation of  
            Penal Code section 240, simple assault.

            "The Maryland law requires that probable cause exist to arrest  
            for one of the limited, serious violent felonies to which it  
            applies.  By contrast, in this state, any citizen may affect  
            an arrest for a misdemeanor.  Non-law enforcement citizens are  
            not normally trained in determining probable cause - and  
            presumably you bill would apply to misdemeanants arrested via  
            citizen's arrest."

          8)Related Legislation: AB-390 (Cooper), of the 2015 - 2016  
            legislative session.  Would require that individuals,  
            excluding juveniles, who are convicted of specified  
            misdemeanors (drug and property crimes affected by Proposition  
            47) to provide DNA samples.








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          REGISTERED SUPPORT / OPPOSITION:

          Support
          
          Crime Victims United 
          Law Center to Prevent Gun Violence
          
          Opposition
          
          California Attorneys for Criminal Justice
          California Public Defenders Association
          California State Sheriffs' Association
          Firearms Policy Coalition
          Legal Services for Prisoners with Children


          Analysis Prepared  
          by:              David Billingsley / PUB. S. / (916) 319-3744