BILL ANALYSIS Ó AB 84 Page 1 Date of Hearing: May 13, 2015 ASSEMBLY COMMITTEE ON APPROPRIATIONS Jimmy Gomez, Chair AB 84 (Gatto) - As Amended April 23, 2015 ----------------------------------------------------------------- |Policy |Public Safety |Vote:|6 - 1 | |Committee: | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | ----------------------------------------------------------------- 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 AB 84 Page 2 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: AB 84 Page 3 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. AB 84 Page 4 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 AB 84 Page 5 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 AB 84 Page 6 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