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