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 --