BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1492 Hearing Date: July 14, 2015
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|Author: |Gatto |
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|Version: |June 29, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Forensic Testing: DNA Samples
HISTORY
Source: Author
Prior Legislation:Proposition 69 November 2, 2004
SB 883 (Margett) not heard Assembly Public Safety
2004
SB 284 (Brulte) - failed Senate Public Safety
2003
SB 1242 (Brulte) - Chapter 632, Stats. 2002
AB 2105 (La Suer) - Chapter 160, Stats. 2002
AB 673 (Migden) - Chapter 906, Stats. 2001
AB 2814 (Machado) - Chapter 823, Stats. 2000
AB 557 (Nakano) - not heard in Senate Public
Safety 1999-2000
SB 654 (Schiff) - Chapter 475,
Stats. 1999
AB 1332 (Murray) - Chapter
696, Stats. 1998
Support: Crime Victims United
Opposition:California State Sheriffs' Association
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Assembly Floor Vote: No longer relevant
PURPOSE
The purpose of this bill is to allow for DNA collection of a
person convicted of a serious felony if the ruling of People v
Buza is upheld by the California Supreme Court and to allow law
enforcement access to publicly available data bases.
Existing law 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:
Any person, including any juvenile, who is convicted of
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. (Penal Code § 296
(a)(1).)
Any adult person who is arrested for or charged with a
felony offense. (Penal Code § 296 (a)(2)(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. (Penal Code, § 296 (a)(3).)
Existing law provides that the term "felony" includes an attempt
to commit the offense. (Penal Code, §296 (a)(4).)
Existing law allows the collection and analysis of specimens,
samples, or print impressions as a condition of a plea for a
non-qualifying offense. (Penal Code §296 (a)(5).)
Existing law 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
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treatment facility, and shall include, but not be limited to,
the following persons, including juveniles:
Any person committed to a state hospital or other
treatment facility as a mentally disordered sex offender.
Any person who is designated a mentally ordered
offender.
Any person found to be a sexually violent predator.
(Penal Code, §296 (c)(3).)
Existing law 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. (Penal Code §296
(f).)
Existing law 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. (Penal Code §296(f).)
Existing law 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 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. (Penal Code, § 295 (g).)
Existing law provides that DOJ can perform DNA analysis, other
forensic identification analysis, and examination of palm prints
pursuant to the Act only for identification purposes. (Penal
Code § 295.1 (a) & (b).)
Existing law specifies that the Director of Corrections, or the
Chief Administrative Officer of the detention facility, jail, or
other facility at which the blood specimens, buccal swab
samples, and thumb and palm print impressions were collected
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send them promptly to the Department of Justice.(Penal Code §
298.)
Existing law requires the DNA Laboratory of DOJ to establish
procedures for entering data bank and database information.
(Penal Code § 298(b)(6).)
Existing law 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:
Following arrest, no accusatory pleading has been filed
within the applicable period allowed by law charging the
person with 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 prior to adjudication by a trier of
fact; or ,
The underlying conviction or disposition serving as the
basis for including the DNA profile has been reversed and
the case dismissed; or,
The person has been found factually innocent of the
underlying offense; or,
The defendant has been found not guilty or the defendant
has been acquitted of the underlying offense. (Penal Code §
299 (b).)
Existing law 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
non-appealable order and shall not be reviewed by petition for
writ. (Penal Code, § 299 (c)(1).)
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Existing law 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 the necessary showing at a noticed hearing, and that
includes all of the following:
The written request for expungement pursuant to this
section.
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.
Proof of written notice to the prosecuting attorney and
the Department of Justice that expungement has been
requested.
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
. (Penal Code, § 299 (c)(2).):
Existing law 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 requiring a
DNA sample, or as a condition of a plea. (Penal Code, § 299
(d).)
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Existing law provides that 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.
(Penal Code, § 299 (d).)
Existing law 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(Penal Code § 17.), or dismissal following
conviction. ( Penal Code §§ 1203.4, 1203.4a.) (Penal Code §
299(f).)
This bill requires that DNA samples obtained during an arrest
for a sex offense or a serious or violent 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. Buza, review granted
February 18, 2015.
This bill 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, 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:
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.
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.
The person has been found factually innocent of the
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underlying offense, in which case the court shall forward
its order to the Department of Justice upon disposition of
the case.
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.
This bill allows a 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
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Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for The Bill
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According to the author:
In 2004, California voters passed Proposition 69, expanding
the State's DNA collection and testing program to allow for
the collection of DNA samples from every person arrested
for a felony. Proposition 69 went into effect in 2009, but
shortly thereafter, its constitutionality was challenged in
court. In December of 2014, California's Appellate Court
struck down the state's criminal-DNA-testing program
contained in Proposition 69. In People v. Buza, the court
found several aspects of California's DNA-testing practices
to be unconstitutional, dealing a huge setback to law
enforcement's ability to solve crimes. The Attorney
General has appealed the Buza decision, but during the
period between the Appeals Court decision and the CA
Supreme Court's decision to hear the case, the Department
of Justice was forced to halt the collection of DNA from
felony arrestees, thus hindering law enforcement's ability
to solve crimes. DNA collection of felony arrestees has
resumed since March of 2015, when the Buza decision was
depublished while the CA Supreme Court considers the case,
so AB 1492 seeks to provide a back-up system, that is
consistent with what the US Supreme Court found
constitutional in the Maryland v. King case, in case the CA
Supreme Court upholds the lower court's decision.
AB 1492 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), would require a
probable cause determination (rather than immediately upon
arrest), and would set up a framework for automatic
expungement of those samples collected from individuals who
are ultimately not charged, found not-guilty or otherwise
exonerated, 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 1492 strives to make sure
that best practices are implemented, the constitution is
respected, the innocent are exonerated, and the guilty are
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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. (Proposition 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 imposes 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 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.
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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 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
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(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 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. Alternative if Buza is Upheld
This bill would provide that if the Buza case is upheld by the
California Supreme Court then the existing statutes related to
the DNA Databank would be changed in the following ways:
a. Instead of all felonies DNA would only be taken from
a person arrested or charged with:
i. Any sex offense for which registration is
required.
ii. Murder or voluntary manslaughter or any attempt
to commit murder of voluntary manslaughter.
iii. Any serious of violent felony
a. Instead of the sample being submitted to the DOJ at
arrest the sample will be submitted after
a judicial determination for probable cause has occurred.
b. Instead of requiring the arrested person to request
his or her DNA be removed from the data bank after a case
was dismissed, found factually innocent or was found not
guilty the district attorney shall forward its order to
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DOJ in the case of a dismissal and the court shall
forward it order in the case of factual innocence or a
not guilty verdict to the DOJ for removal and destruction
of the DNA sample in accordance with the law.
It is unusual for the legislature to try to guess how a court
will rule in a particular case. Is it appropriate in this case?
The California State Sheriffs' Association opposes this bill
stating:
In Buza, the appellate court, utilizing California
constitutional standards and not a 4th Amendment
analysis, precludes submission of a DNA sample to the
Department of Justice (DOJ) DNA databank absent a
judicial determination of probable cause. The holding
further speaks to the need to alter the process
whereby DNA samples of arrestees who are acquitted or
not ultimately charged are removed from the databank.
However, the court's analysis does not speak to the
distinction between collecting DNA from all felony
arrestees and only those arrested for serious crimes.
In fact, the court points out this difference between
Maryland law and California law as part of the reason
why it utilizes the California constitutional standard
regarding privacy in lieu of the 4th Amendment
standard used by the United States Supreme Court in
Maryland v. King
569 U.S. ___ (2013), 133 S. Ct. 1958.
We understand and appreciate the author's goal of
protecting the government's ability to collect DNA
from certain persons arrested for felony crimes. That
said, we cannot abide this significant change that
will result in fewer DNA samples being entered into
the DNA databank. We are happy to continue working
with you and your office regarding this issue, but for
the above-mentioned reasons, CSSA must respectfully
oppose AB 1492 at this time.
6. Access to Publicly Available Databases
This bill provides that a law enforcement agency may use a
publicly available database, excluding a law enforcement
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database that is not linked to the Combined DNA Index System
(CODIS), if the case being investigated involves a homicide or
sexual assault involving force and the case is unsolved and all
investigative leads have been exhausted, in which case law
enforcement agency shall review nonforensic information in order
to identify additional evidence bearing on relatedness.
A publicly available database could be something like
ancestry.com. According to the ancestry.com website anyone can
get their DNA tested to find out their family ancestry for about
$79. The intent appears to be to use these types of searches to
look for leads; however it would seem unlikely that a person
submitting DNA to a website like this would intend to have a
relative, near or distant, subject to questioning by law
enforcement even in a case where they are later excluded. Such
a thing happened when a New Orleans filmmaker was questioned
about an Idaho murder after his father submitted his DNA to
the ancestry.com and the crime scene suggested a familial
match-within 3 or 4 generations of the father. The filmmaker
was cleared but not after facing questioning by the police and a
month of waiting to hear the results of the DNA test. (Mustian,
J "New Orleans Filmmaker Cleared in Cold-Case Murder; False
Positive Highlights Limits of Familial DNA Searching" The New
Orleans Advocate March 12, 2015.
http://www.theneworleansadvocate.com/news/11707192-123/new-orlean
s-filmmaker-cleared-in)
Should the law explicitly allow the search of publicly available
databases without a warrant?
7. Author's Amendments
The author intends to take the following clarifying/technical
amendments in Committee.
Page 4 lines 9-18 will be amended as follows:
It is the intent of the Legislature to allow that
when buccal swab samples to be are taken for DNA
analysis as a condition of a plea or reduction or
dismissal of charges, provided that all uses of the
DNA sample have been shall first be disclosed to the
defendant in writing, that consent has been shall be
obtained in writing, and that the defendant has shall
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signed sign a written agreement allowing his or her
buccal swap sample or blood sample to be taken for DNA
analysis, and that the defendant shall have an
opportunity to consult with counsel prior to signing
the agreement. It is the intent of the Legislature
that buccal swab samples taken as a condition of a
plea or reduction or dismissal of charges to be done
on the basis of individualized consideration.
Page 18 lines 8-17 (since the expungement will be automatic):
(d) Upon order from the court, the The Department of
Justice shall destroy any specimen or sample collected
from the person and any searchable DNA database
profile pertaining to the person, unless the
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.
8. Other Legislation
AB 390 (Cooper) which is also scheduled to be heard today
requires DNA collection of people who commit the crimes that
used to be wobblers but are now misdemeanors after the passage
of Proposition 4.
This bill was a gut and amend in the Senate on June 29, 2015.
AB 84 (Gatto) which was almost identical to this bill was held
in Assembly Appropriations on May 28th of this year.
-- END -
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