AB 1492, 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 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 law, People v. Buza (2014) 231 Cal.App.4th 1446, for which review has been granted by the California Supreme Court, 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 would, if the California Supreme Court rules to uphold People v. Buza, limit the above-specified requirements to persons arrested for specified sex offenses or serious or violent felonies. The bill would, if the California Supreme Court rules to uphold People v. Buza, 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 that a DNA specimen and sample be destroyed and that a searchable database profile be expunged from that databank 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 would, if the California Supreme Court rules to uphold People v. Buza, require the DNA specimen and sample to be destroyed and the searchable database profile expunged from the database without the requirement of an application.
(3) 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 Legislaturebegin delete to allowend deletebegin insert that ifend insert buccal swab samplesbegin delete to beend deletebegin insert areend insert taken for DNA analysis as a condition of a plea or reduction or dismissal of chargesbegin insert, that all uses of the DNA sample be disclosed to
the defendant in writing, that consent be obtained in writing, that the defendant sign a written agreement allowing his or her buccal swab sample or blood sample to be taken for DNA analysis, and that the defendant have an opportunity to consult with counsel prior to signing the agreementend insert. The bill would permit a law enforcement agency to use any publicly available database to aid in the investigation of a crime.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
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, and to further the
5purposes of the DNA Fingerprint, Unsolved Crime and Innocence
6Protection Act, Proposition 69, approved by the voters at the
7November 2, 2004, statewide general election, in light of that
8decision.
It is the intent of the Legislaturebegin delete to allowend deletebegin insert that ifend insert buccal
10swab samplesbegin delete to beend deletebegin insert areend insert taken for DNA analysis as a condition of
11a plea or reduction or dismissal of charges,begin delete providedend delete that all uses
12of the DNA samplebegin delete have beenend deletebegin insert
shall first beend insert disclosed to the
13defendant in writing, that consentbegin delete has beenend deletebegin insert shall beend insert obtained in
14writing,begin delete and that the defendant has signedend deletebegin insert that the defendant shall
15signend insert a written agreement allowing his or her buccalbegin delete swapend deletebegin insert swabend insert
16 sample or blood sample to be taken for DNA analysisbegin insert, and that
17the defendant shall have an opportunity to
consult with his or her
18legal counsel prior to signing the agreementend insert. It is the intent of the
19Legislature that buccal swab samples taken as a condition of a plea
20or reduction or dismissal of charges be done on the basis of
21individualized consideration.
Section 296 of the Penal Code is amended to read:
(a) The following persons shall provide buccal swab
24samples, right thumbprints, and a full palm print impression of
25each hand, and any blood specimens or other biological samples
26required pursuant to this chapter for law enforcement identification
27analysis:
28(1) Any person, including any juvenile, who is convicted of or
29pleads guilty or no contest to any felony offense, or is found not
30guilty by reason of insanity of any felony offense, or any juvenile
P4 1who is adjudicated under Section 602 of the Welfare and
2Institutions Code for committing any felony offense.
3(2) Any adult person who is arrested for or charged with any of
4the following felony offenses:
5(A) Any felony offense specified in Section 290 or attempt to
6commit any felony offense described in Section 290, or any felony
7offense that imposes upon a person the duty to register in California
8as a sex offender under Section 290.
9(B) Murder or voluntary manslaughter or any attempt to commit
10murder or voluntary manslaughter.
11(C) Commencing on January 1, 2009, any adult person arrested
12or charged with any felony offense.
13(3) Any person, including any juvenile, who is required to
14register under Section 290 or 457.1 because of the commission of,
15or the attempt to commit, a felony or misdemeanor offense, or any
16person, including any juvenile, who is housed in a mental health
17facility or sex offender treatment program after referral to such
18facility or
program by a court after being charged with any felony
19offense.
20(4) The term “felony” as used in this subdivision includes an
21attempt to commit the offense.
22(5) This chapter does not prohibit collection and analysis of
23specimens, samples, or print impressions as a condition of a plea
24for a nonqualifying offense.
25(b) The provisions of this chapter and its requirements for
26submission of specimens, samples, and print impressions as soon
27as administratively practicable shall apply to all qualifying persons
28regardless of sentence imposed, including a sentence of death, life
29without the possibility of parole, or a life or indeterminate term,
30or other disposition rendered in the case of an adult or juvenile
31tried as an adult, or whether the person is diverted, fined, or referred
32for evaluation, and regardless of disposition
rendered or placement
33made in the case of a juvenile who is found to have committed
34any felony offense or is adjudicated under Section 602 of the
35Welfare and Institutions Code.
36(c) The provisions of this chapter and its requirements for
37submission of specimens, samples, and print impressions as soon
38as administratively practicable by qualified persons as described
39in subdivision (a) shall apply regardless of placement or
40confinement in any mental hospital or other public or private
P5 1treatment facility, and shall include, but not be limited to, the
2following persons, including juveniles:
3(1) Any person committed to a state hospital or other treatment
4facility as a mentally disordered sex offender under former Article
51 (commencing with Section 6300) of Chapter 2 of Part 2 of
6Division 6 of the Welfare and Institutions Code.
7(2) Any person who has a severe mental disorder as set forth
8within the provisions of Article 4 (commencing with Section 2960)
9of Chapter 7 of Title 1 of Part 3 of the Penal Code.
10(3) Any person found to be a sexually violent predator pursuant
11to Article 4 (commencing with Section 6600) of Chapter 2 of Part
122 of Division 6 of the Welfare and Institutions Code.
13(d) The provisions of this chapter are mandatory and apply
14whether or not the court advises a person, including any juvenile,
15that he or she must provide the databank and database specimens,
16samples, and print impressions as a condition of probation, parole,
17or any plea of guilty, no contest, or not guilty by reason of insanity,
18or any admission to any of the offenses described in subdivision
19(a).
20(e) If at any stage of court proceedings the
prosecuting attorney
21determines that specimens, samples, and print impressions required
22by this chapter have not already been taken from any person, as
23defined under subdivision (a) of Section 296, the prosecuting
24attorney shall notify the court orally on the record, or in writing,
25and request that the court order collection of the specimens,
26samples, and print impressions required by law. However, a failure
27by the prosecuting attorney or any other law enforcement agency
28to notify the court shall not relieve a person of the obligation to
29provide specimens, samples, and print impressions pursuant to this
30chapter.
31(f) Prior to final disposition or sentencing in the case the court
32shall inquire and verify that the specimens, samples, and print
33impressions required by this chapter have been obtained and that
34this fact is included in the abstract of judgment or dispositional
35order in the case of a juvenile. The abstract of judgment issued by
36the
court shall indicate that the court has ordered the person to
37comply with the requirements of this chapter and that the person
38shall be included in the state’s DNA and Forensic Identification
39Database and Databank Program and be subject to this chapter.
P6 1However, failure by the court to verify specimen, sample, and
2print impression collection or enter these facts in the abstract of
3judgment or dispositional order in the case of a juvenile shall not
4invalidate an arrest, plea, conviction, or disposition, or otherwise
5relieve a person from the requirements of this chapter.
6(g) This section shall become inoperative if the California
7Supreme Court rules to uphold the California Court of Appeal
8decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
9to the provisions of Section 296 of the Penal Code, as amended
10by Section 3 of the DNA Fingerprint, Unsolved Crime and
11Innocence
Protection Act, Proposition 69, approved by the voters
12at the November 2, 2004, general election, in which case this
13section shall become inoperative immediately upon that ruling
14becoming final.
Section 296 is added to the Penal Code, to read:
(a) The following persons shall provide buccal swab
17samples, right thumbprints, and a full palm print impression of
18each hand, and any blood specimens or other biological samples
19required pursuant to this chapter for law enforcement identification
20analysis:
21(1) Any person, including any juvenile, who is convicted of or
22pleads guilty or no contest to any felony offense, or is found not
23guilty by reason of insanity of any felony offense, or any juvenile
24who is adjudicated under Section 602 of the Welfare and
25Institutions Code for committing any felony offense.
26(2) Any adult person who is arrested for or charged with any of
27the following felony offenses:
28(A) Any felony offense specified in Section 290 or attempt to
29commit any felony offense described in Section 290, or any felony
30offense that imposes upon a person the duty to register in California
31as a sex offender under Section 290.
32(B) Murder or voluntary manslaughter or any attempt to commit
33murder or voluntary manslaughter.
34(C) Any adult person arrested or charged with a felony offense
35specified in
subdivision (c) of Section 667.5 or subdivision (c) of
36Section 1192.7.
37(3) Any person, including any juvenile, who is required to
38register under Section 290 or 457.1 because of the commission of,
39or the attempt to commit, a felony or misdemeanor offense, or any
40person, including any juvenile, who is housed in a mental health
P7 1facility or sex offender treatment program after referral to such
2facility or program by a court after being charged with any felony
3offense.
4(4) The term “felony” as used in this subdivision includes an
5attempt to commit the offense.
6(5) This
chapter does not prohibit collection and analysis of
7specimens, samples, or print impressions as a condition of a plea
8for a nonqualifying offense.
9(b) The provisions of this chapter and its requirements for
10submission of specimens, samples, and print impressions as soon
11as administratively practicable shall apply to all qualifying persons
12regardless of sentence imposed, including a sentence of death, life
13without the possibility of parole, or a life or indeterminate term,
14or other disposition rendered in the case of an adult or juvenile
15tried as an adult, or whether the person is diverted, fined, or referred
16for evaluation, and regardless of disposition rendered or placement
17made in the case of juvenile who is found to have committed any
18felony offense or is adjudicated under Section 602 of the Welfare
19and Institutions Code.
20(c) The provisions of this chapter and its requirements for
21submission of specimens, samples, and print impressions as soon
22as administratively practicable by qualified persons as described
23in subdivision (a) shall apply regardless of placement or
24confinement in any mental hospital or other public or private
25treatment facility, and shall include, but not be limited to, the
26following persons, including juveniles:
27(1) Any person committed to a state hospital or other treatment
28facility as a mentally disordered sex offender under former Article
291 (commencing with Section 6300) of Chapter 2 of Part 2 of
30Division 6 of the Welfare and Institutions Code.
31(2) Any person who has a severe mental disorder as set forth
32within the provisions of Article 4 (commencing with Section 2960)
33of Chapter 7 of Title 1 of Part 3 of the Penal Code.
34(3) Any person found to be a sexually violent predator pursuant
35to Article 4 (commencing with Section 6600) of Chapter 2 of Part
362 of Division 6 of the Welfare and Institutions Code.
37(d) The provisions of this chapter are mandatory and apply
38whether or not the court advises a person, including any juvenile,
39that he or she must provide the data bank and database specimens,
40samples, and print impressions as a condition of probation, parole,
P8 1or any plea of guilty, no contest, or not guilty by reason of insanity,
2or any
admission to any of the offenses described in subdivision
3(a).
4(e) If at any stage of court proceedings the prosecuting attorney
5determines that specimens, samples, and print impressions required
6by this chapter have not already been taken from any person, as
7defined under subdivision (a) of Section 296, the prosecuting
8attorney shall notify the court orally on the record, or in writing,
9and request that the court order collection of the specimens,
10samples, and print impressions required by law. However, a failure
11by the prosecuting attorney or any other law enforcement agency
12to notify the court shall not relieve a person of the obligation to
13provide specimens, samples, and print impressions pursuant to this
14chapter.
15(f) Prior to final disposition or sentencing in the case the court
16shall inquire and verify that the specimens, samples, and print
17impressions required by this chapter have been obtained and that
18this fact is included in the abstract of judgment or dispositional
19order in the case of a juvenile. The abstract of judgment issued by
20the court shall indicate that the court has ordered the person to
21comply with the requirements of this chapter and that the person
22shall be included in the state’s DNA and Forensic Identification
23Database and Databank Program and be subject to this chapter.
24However, failure by the court to verify specimen, sample, and
25print impression collection or enter these facts in the abstract of
26judgment or dispositional order in the case of a juvenile shall not
27invalidate an arrest, plea, conviction, or disposition, or otherwise
28relieve a person from the
requirements of this chapter.
29(g) This section shall only become operative if the California
30Supreme Court rules to uphold the California Court of Appeal
31decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
32to the provisions of Section 296 of the Penal Code, as amended
33by Section 3 of the DNA Fingerprint, Unsolved Crime and
34Innocence Protection Act, Proposition 69, approved by the voters
35at the November 2, 2004, general election, in which case this
36section shall become operative immediately upon that ruling
37becoming final.
Section 298 of the Penal Code is amended to read:
(a) The Secretary of the Department of Corrections and
40Rehabilitation, or the Chief Administrative Officer of the detention
P9 1facility, jail, or other facility at which the blood specimens, buccal
2swab samples, and thumb and palm print impressions were
3collected shall cause these specimens, samples, and print
4impressions to be forwarded promptly to the Department of Justice.
5The specimens, samples, and print impressions shall be collected
6by a person using a Department of Justice approved collection kit
7and in accordance with the requirements and procedures set forth
8in subdivision (b).
9(b) (1) The Department of Justice shall provide all blood
10specimen vials, buccal swab collectors, mailing tubes, labels,
and
11instructions for the collection of the blood specimens, buccal swab
12samples, and thumbprints. The specimens, samples, and
13thumbprints shall thereafter be forwarded to the DNA Laboratory
14of the Department of Justice for analysis of DNA and other forensic
15identification markers.
16Additionally, the Department of Justice shall provide all full
17palm print cards, mailing envelopes, and instructions for the
18collection of full palm prints. The full palm prints, on a form
19prescribed by the Department of Justice, shall thereafter be
20forwarded to the Department of Justice for maintenance in a file
21for identification purposes.
22(2) The withdrawal of blood shall be performed in a medically
23approved manner. Only health care providers trained and certified
24to draw blood may withdraw the blood specimens for purposes of
25this section.
26(3) Buccal swab
samples may be procured by law enforcement
27or corrections personnel or other individuals trained to assist in
28buccal swab collection.
29(4) Right thumbprints and a full palm print impression of each
30hand shall be taken on forms prescribed by the Department of
31Justice. The palm print forms shall be forwarded to and maintained
32by the Bureau of Criminal Identification and Information of the
33Department of Justice. Right thumbprints also shall be taken at
34the time of the collection of samples and specimens and shall be
35placed on the sample and specimen containers and forms as
36directed by the Department of Justice. The samples, specimens,
37and forms shall be forwarded to and maintained by the DNA
38Laboratory of the Department of Justice.
39(5) The law enforcement or custodial agency collecting
40specimens, samples, or print impressions is responsible for
P10 1confirming that the person qualifies for
entry into the Department
2of Justice DNA Database and Databank Program prior to collecting
3the specimens, samples, or print impressions pursuant to this
4chapter.
5(6) The DNA Laboratory of the Department of Justice is
6responsible for establishing procedures for entering databank and
7database information.
8(c) (1) Persons authorized to draw blood or obtain samples or
9print impressions under this chapter for the databank or database
10shall not be civilly or criminally liable either for withdrawing blood
11when done in accordance with medically accepted procedures, or
12for obtaining buccal swab samples by scraping inner cheek cells
13of the mouth, or thumb or palm print impressions when performed
14in accordance with standard professional practices.
15(2) There is no civil or criminal cause of action against
any law
16enforcement agency or the Department of Justice, or any employee
17thereof, for a mistake in confirming a person’s or sample’s
18qualifying status for inclusion within the database or databank or
19in placing an entry in a databank or a database.
20(3) The failure of the Department of Justice or local law
21enforcement to comply with Article 4 or any other provision of
22this chapter shall not invalidate an arrest, plea, conviction, or
23disposition.
24(d) This section shall become inoperative if the California
25Supreme Court rules to uphold the California Court of Appeal
26decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
27to the provisions of Section 298 of the Penal Code, as amended
28by Section 6 of the DNA Fingerprint, Unsolved Crime and
29Innocence Protection Act, Proposition 69, approved by the voters
30at the November 2, 2004, statewide general election, in which case
31this
section shall become inoperative immediately upon that ruling
32becoming final.
Section 298 is added to the Penal Code, to read:
(a) (1) The Secretary of the Department of Corrections
35and Rehabilitation, or the Chief Administrative Officer of the
36detention facility, jail, or other facility at which the blood
37specimens, buccal swab samples, and thumb and palm print
38impressions were collected shall cause these specimens, samples,
39and print impressions to be forwarded promptly to the Department
40of Justice, except that a blood specimen or buccal swab sample
P11 1taken from a person arrested for the commission of a felony as
2specified in paragraph (2) of subdivision (a) of Section 296 shall
3be forwarded to the Department of Justice after a judicial
4determination of probable cause to believe the person has
5committed the offense for which he or she was arrested has been
6made pursuant to Section 825. The specimens, samples, and
print
7impressions shall be collected by a person using a Department of
8Justice approved collection kit and in accordance with the
9requirements and procedures set forth in subdivision (b).
10(2) A blood specimen or buccal swab sample taken from a
11person arrested for the commission of a felony as specified in
12paragraph (2) of subdivision (a) of Section 296 that has not been
13forwarded to the Department of Justice within six months following
14the arrest of that person because the agency that took the blood
15specimen or buccal swab sample has not received notice to forward
16the DNA specimen or sample to the Department of Justice for
17inclusion in the state’s DNA and Forensic Identification Database
18and Databank Program pursuant to paragraph (1) following a
19determination of probable cause, shall be destroyed by the agency
20that collected the blood specimen or buccal swab sample.
21(b) (1) The
Department of Justice shall provide all blood
22specimen vials, buccal swab collectors, mailing tubes, labels, and
23instructions for the collection of the blood specimens, buccal swab
24samples, and thumbprints. The specimens, samples, and
25thumbprints shall thereafter be forwarded to the DNA Laboratory
26of the Department of Justice for analysis of DNA and other forensic
27identification markers.
28Additionally, the Department of Justice shall provide all full
29palm print cards, mailing envelopes, and instructions for the
30collection of full palm prints. The full palm prints, on a form
31prescribed by the Department of Justice, shall thereafter be
32forwarded to the Department of Justice for maintenance in a file
33for identification purposes.
34(2) The withdrawal of blood shall be performed in a medically
35approved manner. Only health care providers trained and certified
36to draw blood may withdraw the blood specimens for
purposes of
37this section.
38(3) Buccal swab samples may be procured by law enforcement
39or corrections personnel or other individuals trained to assist in
40buccal swab collection.
P12 1(4) Right thumbprints and a full palm print impression of each
2hand shall be taken on forms prescribed by the Department of
3Justice. The palm print forms shall be forwarded to and maintained
4by the Bureau of Criminal Identification and Information of the
5Department of Justice. Right thumbprints also shall be taken at
6the time of the collection of samples and specimens and shall be
7placed on the sample and specimen containers and forms as
8directed by the Department of Justice. The samples, specimens,
9and forms shall be forwarded to and maintained by the DNA
10Laboratory of the Department of Justice.
11(5) The law enforcement or custodial agency
collecting
12specimens, samples, or print impressions is responsible for
13confirming that the person qualifies for entry into the Department
14of Justice DNA and Forensic Identification Database and Databank
15Program prior to collecting the specimens, samples, or print
16impressions pursuant to this chapter.
17(6) The DNA Laboratory of the Department of Justice is
18responsible for establishing procedures for entering databank and
19database information.
20(c) (1) Persons authorized to draw blood or obtain samples or
21print impressions under this chapter for the databank or database
22shall not be civilly or criminally liable either for withdrawing blood
23when done in accordance with medically accepted procedures, or
24for obtaining buccal swab samples by scraping inner cheek cells
25of the mouth, or thumb or palm print impressions when performed
26in accordance with standard
professional practices.
27(2) There is no civil or criminal cause of action against any law
28enforcement agency or the Department of Justice, or any employee
29thereof, for a mistake in confirming a person’s or sample’s
30qualifying status for inclusion within the database or databank or
31in placing an entry in a databank or a database.
32(3) The failure of the Department of Justice or local law
33enforcement to comply with Article 4 or any other provision of
34this chapter shall not invalidate an arrest, plea, conviction, or
35disposition.
36(d) This section shall only become operative if the California
37Supreme Court rules to uphold the California Court of Appeal
38decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
39to the provisions of Section 298 of the Penal Code, as amended
40by Section 6 of the DNA Fingerprint, Unsolved
Crime and
P13 1Innocence Protection Act, Proposition 69, approved by the voters
2at the November 2, 2004, statewide general election, in which case
3this section shall become operative immediately upon that ruling
4becoming final.
Section 299 of the Penal Code is amended to read:
(a) A person whose DNA profile has been included in
7the databank pursuant to this chapter shall have his or her DNA
8specimen and sample destroyed and searchable database profile
9expunged from the databank program pursuant to the procedures
10set forth in subdivision (b) if the person has no past or present
11offense or pending charge which qualifies that person for inclusion
12within the state’s DNA and Forensic Identification Database and
13Databank Program and there otherwise is no legal basis for
14retaining the specimen or sample or searchable profile.
15(b) Pursuant to subdivision (a), a person who has no past or
16present qualifying offense, and for whom there otherwise is no
17legal basis for retaining the specimen or sample or
searchable
18profile, may make a written request to have his or her specimen
19and sample destroyed and searchable database profile expunged
20from the databank program if any of the following apply:
21(1) Following arrest, no accusatory pleading has been filed
22within the applicable period allowed by law charging the person
23with a qualifying offense as set forth in subdivision (a) of Section
24296 or if the charges which served as the basis for including the
25DNA profile in the state’s DNA and Forensic Identification
26Database and Databank Program have been dismissed prior to
27adjudication by a trier of fact;
28(2) The underlying conviction or disposition serving as the basis
29for including the DNA profile has been reversed and the case
30dismissed;
31(3) The person has been found factually innocent of the
32underlying offense pursuant to
Section 851.8, or Section 781.5 of
33the Welfare and Institutions Code; or
34(4) The defendant has been found not guilty or the defendant
35has been acquitted of the underlying offense.
36(c) (1) The person requesting the databank entry to be expunged
37must send a copy of his or her request to the trial court of the
38county where the arrest occurred, or that entered the conviction or
39rendered disposition in the case, to the DNA Laboratory of the
40Department of Justice, and to the prosecuting attorney of the county
P14 1in which he or she was arrested or, convicted, or adjudicated, with
2proof of service on all parties. The court has the discretion to grant
3or deny the request for expungement. The denial of a request for
4expungement is a nonappealable order and shall not be reviewed
5by petition for writ.
6(2) Except as provided in this section, the Department of Justice
7shall destroy a specimen and sample and expunge the searchable
8DNA database profile pertaining to the person who has no present
9or past qualifying offense of record upon receipt of a court order
10that verifies the applicant has made the necessary showing at a
11noticed hearing, and that includes all of the following:
12(A) The written request for expungement pursuant to this
13section.
14(B) A certified copy of the court order reversing and dismissing
15the conviction or case, or a letter from the district attorney
16certifying that no accusatory pleading has been filed or the charges
17which served as the basis for collecting a DNA specimen and
18sample have been dismissed prior to adjudication by a trier of fact,
19the defendant has been found factually innocent, the defendant has
20been found not guilty, the defendant
has been acquitted of the
21underlying offense, or the underlying conviction has been reversed
22and the case dismissed.
23(C) Proof of written notice to the prosecuting attorney and the
24Department of Justice that expungement has been requested.
25(D) A court order verifying that no retrial or appeal of the case
26is pending, that it has been at least 180 days since the defendant
27or minor has notified the prosecuting attorney and the Department
28of Justice of the expungement request, and that the court has not
29received an objection from the Department of Justice or the
30prosecuting attorney.
31(d) Upon order from the court, the Department of Justice shall
32destroy any specimen or sample collected from the person and any
33searchable DNA database profile pertaining to the person, unless
34the department determines that the person is
subject to the
35provisions of this chapter because of a past qualifying offense of
36record or is or has otherwise become obligated to submit a blood
37specimen or buccal swab sample as a result of a separate arrest,
38conviction, juvenile adjudication, or finding of guilty or not guilty
39by reason of insanity for an offense described in subdivision (a)
40of Section 296, or as a condition of a plea.
P15 1The Department of Justice is not required to destroy analytical
2data or other items obtained from a blood specimen or saliva, or
3buccal swab sample, if evidence relating to another person subject
4to the provisions of this chapter would thereby be destroyed or
5otherwise compromised.
6Any identification, warrant, probable cause to arrest, or arrest
7based upon a databank or database match is not invalidated due
8to a failure to expunge or a delay in expunging records.
9(e) Notwithstanding any other law, the Department of Justice
10DNA Laboratory is not required to expunge DNA profile or
11forensic identification information or destroy or return specimens,
12samples, or print impressions taken pursuant to this section if the
13duty to register under Section 290 or 457.1 is terminated.
14(f) Notwithstanding any other law, including Sections 17,
151170.18, 1203.4, and 1203.4a, a judge is not authorized to relieve
16a person of the separate administrative duty to provide specimens,
17samples, or print impressions required by this chapter if a person
18has been found guilty or was adjudicated a ward of the court by a
19trier of fact of a qualifying offense as defined in subdivision (a)
20of Section 296, or was found not guilty by reason of insanity or
21pleads no contest to a qualifying offense as defined in subdivision
22(a) of Section 296.
23(g) This section
shall become inoperative if the California
24Supreme Court rules to uphold the California Court of Appeal
25decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
26to the provisions of Section 299 of the Penal Code, as amended
27by Section 9 of the DNA Fingerprint, Unsolved Crime and
28Innocence Protection Act, Proposition 69, approved by the voters
29at the November 2, 2004, statewide general election, in which case
30this section shall become inoperative immediately upon that ruling
31becoming final.
Section 299 is added to the Penal Code, to read:
(a) A person whose DNA profile has been included in
34the databank pursuant to this chapter shall have his or her DNA
35specimen and sample destroyed and searchable database profile
36expunged from the databank program if the person has no past or
37present offense or pending charge which qualifies that person for
38inclusion within the state’s DNA and Forensic Identification
39Database and Databank Program and there otherwise is no legal
40basis for retaining the specimen or sample or searchable profile.
P16 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
5searchable
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 of
24the 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 fact,
38the defendant has been found factually innocent, the defendant has
39been found not guilty, the defendant has been acquitted of the
P17 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) begin deleteUpon order from the court, the end deletebegin insertPursuant to this section, the end insert
6Department of Justice shall destroy
any specimen or sample
7collected from the person and any searchable DNA database profile
8pertaining to the person, unless the department determines that the
9person is subject to the provisions of this chapter because of a past
10qualifying offense of record or is or has otherwise become
11obligated to submit a blood specimen or buccal swab sample as a
12result of a separate arrest, conviction, juvenile adjudication, or
13finding of guilty or not guilty by reason of insanity for an offense
14described in subdivision (a) of Section 296, or as a condition of a
15plea.
16The Department of Justice is not required to destroy analytical
17data or other items obtained from a blood specimen or saliva, or
18buccal swab sample, if evidence relating to another person subject
19to the provisions of this chapter would thereby be destroyed or
20otherwise compromised.
21Any identification, warrant, probable cause to arrest, or arrest
22based upon a databank or
database match is not invalidated due
23to a failure to expunge or a delay in expunging records.
24(e) Notwithstanding any other law, the Department of Justice
25DNA Laboratory is not required to expunge DNA profile or
26forensic identification information or destroy or return specimens,
27samples, or print impressions taken pursuant to this section if the
28duty to register under Section 290 or 457.1 is terminated.
29(f) Notwithstanding any other law, including Sections 17,
301170.18, 1203.4, and 1203.4a, a judge is not authorized to relieve
31a person of the separate administrative duty to provide specimens,
32samples, or print impressions required by this chapter if a person
33has been found guilty or was adjudicated a ward of the court by a
34trier of fact of a qualifying offense as defined in subdivision (a)
35of Section 296, or was found not guilty by reason of insanity or
36pleads no contest to a
qualifying offense as defined in subdivision
37(a) of Section 296.
38(g) This section shall only become operative if the California
39Supreme Court rules to uphold the California Court of Appeal
40decision in People v. Buza (2014) 231 Cal.App.4th 1446 in regard
P18 1to the provisions of Section 299 of the Penal Code, as amended
2by Section 9 of the DNA Fingerprint, Unsolved Crime and
3Innocence Protection Act, Proposition 69, approved by the voters
4at the November 2, 2004, statewide general election, in which case
5this section shall become operative immediately upon that ruling
6becoming final.
Section 300 of the Penal Code is amended to read:
(a) 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.
13(b) A law enforcement agency may use a publicly available
14database, excluding a law enforcement database that is not linked
15to the Combined DNA Index System (CODIS), if the case being
16investigated involves a homicide or sexual assault involving force
17and the case is unsolved and all investigative leads have been
18exhausted, in which case the law enforcement agency shall review
19nonforensic information in order to identify additional evidence
20
bearing on relatedness.
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94