BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          AB 1492 (Gatto) - Forensic testing:  DNA samples
          
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          |Version: July 16, 2015          |Policy Vote: E. & C.A. 5 - 0,   |
          |                                |          PUB. S. 7 - 0         |
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          |Urgency: No                     |Mandate: No                     |
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          |Hearing Date: August 17, 2015   |Consultant: Jolie Onodera       |
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          This bill meets the criteria for referral to the Suspense File. 

          

          Bill  
          Summary:  AB 1492 would enact the following provisions of law  
          contingent upon the California Supreme Court upholding the  
          decision in People v. Buza (2014), as specified: 
                 Limits DNA collection of persons arrested or charged  
               with a felony to those persons arrested or charged with a  
               serious or violent felony, or an offense requiring sex  
               offender registration, as specified. 
                 Requires that DNA samples obtained during an arrest on a  
               felony not be sent to the Department of Justice (DOJ) for  
               analysis, for up to six months, until notification of a  
               judicial determination of probable cause. Requires an  
               agency to destroy any samples not provided such  
               notification within six months of arrest.
                 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. 
                 Allows a law enforcement agency to use any publicly  







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               available database, excluding a law enforcement database  
               that is not linked to the Combined DNA Index System  
               (CODIS), for certain cases. 


          Fiscal  
          Impact:  
           One-time and ongoing significant costs of $310,000 (General  
            Fund), for the DOJ to enhance the DNA database system and  
            perform the ongoing activities required in the bill.
           Potentially significant state reimbursable costs (General  
            Fund), potentially in excess of hundreds of thousands of  
            dollars annually, for the specific handling of the DNA samples  
            collected, including storing the samples for up to six months  
            and/or destroying samples that have not been forwarded to the  
            DOJ within six months following arrest. 
           Potential increase in court workload (General Fund*) for  
            judicial determinations of probable cause and subsequent  
            notification to agencies that otherwise would not occur under  
            existing law.


          *Trial Court Trust Fund



          Background:  In 2004, the voters passed Proposition 69, expanding the  
          state's DNA collection and testing program to allow for the  
          collection of DNA samples from every individual arrested for a  
          felony. The provisions of Proposition 69 went into effect in  
          2009, but shortly thereafter were challenged in court as  
          unconstitutional. 
          People v. Buza (2014), is currently pending before the  
          California Supreme Court, review granted February 18, 2015,  
          S223698. The legality of California's DNA collection from felony  
          arrestees was at issue in Buza, and the court found the  
          California DNA scheme unconstitutional. The court 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 therefore invalid under the California  
          Constitution. Specifically, the court stated:








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          ". . . 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."


          As the case is under review by the California Supreme Court, its  
          findings have no authority or value as precedent. As a result,  
          Proposition 69 continues to have the effect of law in  
          California, and DNA samples continue to be collected, stored,  
          and tested as specified under the provisions of Proposition 69.  
          It is unclear when the Supreme Court will issue a decision in  
          the case.


          Proposed Law:  
           This bill would limit the collection of DNA samples to  
          individuals arrested for a sex registerable offense or a serious  
          or violent felony, and prohibits the DNA sample from being sent  
          to DOJ for analysis until after a judicial determination of  
          probable cause, operative if the California Supreme Court  
          upholds the case of People v. Buza, as specified. Additionally,  
          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. 
                 Requires the DOJ to destroy any specimen or sample  
               collected from a person described above and any searchable  
               DNA database profile pertaining to the person, subject to  








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               specified exceptions.
                 Allows a law enforcement agency to use any publicly  
               available database, excluding any non-CODIS law enforcement  
               databases, as specified.


          Related  
          Legislation:  AB 84 (Gatto) 2015 was substantially similar to  
          this bill but broader in scope in that it would have also  
          required DNA samples from individuals arrested for specified  
          misdemeanor offenses. This bill was held on the Suspense File of  
          the Assembly Committee on Appropriations.
          AB 390 (Cooper) 2015 would have required DNA collection of  
          individuals who committed crimes that were formerly wobblers but  
          are currently misdemeanors after the passage of Proposition 47  
          (2014). This bill failed passage in the Senate Committee on  
          Public Safety.




          Staff  
          Comments:  The DOJ has indicated the provisions of this bill  
          will result in one-time and ongoing costs of about $310,000 to  
          both enhance the current DNA database system and perform the  
          ongoing activities in the bill.  The DOJ has indicated it would  
          be a 12-month project, beginning on January 1, 2016, and has  
          commented that the implementation date would need to be changed  
          to 12 months from the date of project approval or the date of  
          appropriation, whichever is later.   
          The DOJ has also indicated a potential increase in workload to  
          the extent the reduction in DNA sample collection, and the  
          destruction of specimens along with the expungement of the  
          database profile without the requirement of an application to do  
          so results in increased litigation. Any additional resource  
          needs to investigate and litigate these cases or any anticipated  
          appeals would be dependent on the volume of cases, which is  
          unknown at this time. 

          The provisions of this bill potentially impose a higher level of  
          service on local agencies with regard to the retention and  
          destruction of DNA samples collected. Under Proposition 69, the  
          DNA specimens, samples, and print impressions collected are to  
          be forwarded immediately to the DOJ. By requiring an agency to  








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          retain DNA samples until notification of a judicial  
          determination of probable cause is received, DNA samples could  
          require storage for up to six months under the provisions of  
          this bill. Additionally, to the extent notification is not  
          received within six months of an arrest, the agency is required  
          to destroy the DNA sample. As a result, to the extent this bill  
          imposes a higher level of service on local agencies, any  
          increased costs for storage and destruction could be subject to  
          reimbursement from the state should local agencies file a claim  
          for reimbursement from the Commission on State Mandates. The  
          magnitude of these costs would vary by agency and would be  
          dependent on numerous factors including but not limited to the  
          number of DNA samples requiring storage, the method and duration  
          of storage required, and the method and number of samples  
          requiring destruction. 




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