BILL ANALYSIS Ó
AB 84
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Date of Hearing: May 13, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
AB
84 (Gatto) - As Amended April 23, 2015
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Urgency: No State Mandated Local Program: YesReimbursable:
Yes
SUMMARY:
This bill (a) expands the collection of DNA samples to include
persons convicted of specified misdemeanors, (b) authorizes
samples collected during felony arrests to be forwarded to the
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Department of Justice (DOJ) upon a judicial finding of probable
cause, and (c) allows law enforcement agencies to access
publicly available databases. Specifically, this bill:
1)Requires adults who have been convicted of specified serious
misdemeanors to provide DNA samples.
2)If the California Supreme Court upholds the case of People v.
Buza, review granted February 18, 2015:
a. Requires that DNA samples obtained during an arrest
on a felony not be sent to DOJ for analysis, for up to
six months, until after a judicial determination of
probable cause,
b. Establishes a 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.
3)Allows a law enforcement agency to use any publicly available
database, excluding a law enforcement databased that is not
linked to the Combined DNA Index System (CODIS), for certain
cases.
FISCAL EFFECT:
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1.Significant costs, in the range of $3 million (GF), to the DOJ
to lead statewide coordination of the DNA database, and
perform all the activities required in the bill. DOJ
envisions a database not unlike the DMV database.
2.Significant potential reimbursable state mandated costs (GF)
in the hundreds of thousands for the specific handling of the
samples collected, including storing the samples, for up to
six months. Proposition 69 funds may be available for some of
the collection costs, but not clear that these funds are
available for the storage of specimens for of up to six
months, pending the outcome of the arrest.
Staff notes that the fiscal impact of this bill will depend on
the California Supreme Court's review of People v. Buza.
Several provisions are contingent on the Court's decision.
COMMENTS:
1)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.
2)People v. Buza. Presently pending before the California
Supreme Court is People v. Buza, review granted February 18,
2015. At issue in Buza was the legality of California's DNA
collection from arrestees on felony offenses. (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.
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The 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 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.
3)Purpose. 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
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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."
"AB 84 would, among other things, extend the submittal of
sample requirements 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, and threatening public
officials. The use of DNA data provides law enforcement with
a valuable tool for identifying criminal offenders, and it
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."
4)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
5)Argument in Opposition. According to California Attorneys for
Criminal Justice, "The Buza decision is currently under review
by the California Supreme Court. Any law passed prior to the
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ultimate outcome in Buza is premature, as the final decision
in Buza could either eliminate the need for AB 84, or conflict
with it.
6)Related Legislation: AB 390 (Cooper), in the Committee's
Suspense file, requires individuals, excluding juveniles, who
are convicted of specified misdemeanors (drug and property
crimes affected by Proposition 47) to provide DNA samples.
Analysis Prepared by:Pedro R. Reyes / APPR. / (916)
319-2081