BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 1492 (Gatto) - Forensic testing: DNA samples
-----------------------------------------------------------------
| |
| |
| |
-----------------------------------------------------------------
|--------------------------------+--------------------------------|
| | |
|Version: July 16, 2015 |Policy Vote: E. & C.A. 5 - 0, |
| | PUB. S. 7 - 0 |
| | |
|--------------------------------+--------------------------------|
| | |
|Urgency: No |Mandate: No |
| | |
|--------------------------------+--------------------------------|
| | |
|Hearing Date: August 17, 2015 |Consultant: Jolie Onodera |
| | |
-----------------------------------------------------------------
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
AB 1492 (Gatto) Page 1 of
?
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:
AB 1492 (Gatto) Page 2 of
?
". . . 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
AB 1492 (Gatto) Page 3 of
?
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
AB 1492 (Gatto) Page 4 of
?
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.
-- END --