BILL ANALYSIS Ó AB 1492 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1492 (Gatto) As Amended September 4, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: | 74-0 | (May 22, |SENATE: | 40-0 | (September 10, | | | |2015) | | |2015) | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: E. & R. SUMMARY: Provides contingency language that deoxyribonucleic acid (DNA) samples taken pursuant to arrest shall not be sent to the Department of Justice (DOJ) for analysis, unless there is a finding of probable cause that the offense has been committed. Simplifies the process to remove a DNA sample from the DNA database. Contingency language does not take effect unless the California Supreme Court finds that existing law on the taking of DNA samples is unconstitutional. The Senate amendments delete the Assembly version of this bill, and instead: 1)Require DNA samples to be taken when a person is arrested for or charged with any serious or violent felony, or felony which AB 1492 Page 2 requires registration as a sex offender. This only becomes operative if the California Supreme Court upholds the case of People v. Buza, review granted February 18, 2015, S223698. 2)Require that DNA samples obtained during an arrest on a felony not be sent to DOJ for analysis until after a finding of probable cause, operative if the California Supreme Court upholds the case of People v. Buza, review granted February 18, 2015, S223698. 3)Specify that a finding of probable cause is established by any of the following: a) A felony arrest warrant signed by a judicial officer; b) A grand jury indictment; or c) A determination by a judicial officer that probable cause exists to believe the person has committed the offense for which he or she was arrested. 4)Specify that a DNA sample taken pursuant to a felony arrest shall be destroyed after six months, if the law enforcement agency has not received notice to forward the sample to DOJ following a determination of probable cause, operative if People v. Buza, supra, is upheld. 5)Establish procedure for a person's DNA sample and searchable database profile to be removed 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 People v. Buza, supra, is upheld. The removal process applies to the following situations: AB 1492 Page 3 a) The charge(s) which serve as the basis for including the DNA sample in the database have been dismissed; b) 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 DOJ upon disposition of the case; c) The person has been found factually innocent of the underlying offense, in which case the court shall forward its order to the DOJ upon disposition of the case; and d) 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 DOJ upon disposition of the case. e) Following arrest, and after a law enforcement agency has provided notice to the prosecuting attorney that the criminal case will not be presented to the prosecuting attorney for review, or after the law enforcement agency has submitted a criminal case to the prosecuting attorney for review, no accusatory pleading has been filed within the applicable period allowed by law charging the person with a qualifying offense as specified, the prosecuting attorney shall immediately, or as soon as practicably possible, submit a letter to DOJ indicating that an accusatory pleading has not been filed. EXISTING LAW: 1)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. AB 1492 Page 4 a) 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; b) Any adult person who is arrested for or charged with a felony offense; and 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. 2)Allows the collection and analysis of specimens, samples, or print impressions as a condition of a plea for a non-qualifying offense. 3)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 treatment facility, and shall include, but not be limited to, the following persons, including juveniles: a) Any person committed to a state hospital or other treatment facility as a mentally disordered sex offender; b) Any person who is designated a mentally ordered offender; and AB 1492 Page 5 c) Any person found to be a sexually violent predator. 4)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. 5)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. 6)Provides that The 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. 7)Provides that DOJ can perform DNA analysis, other forensic identification analysis, and examination of palm prints pursuant to the DNA Act (Act) only for identification purposes. 8)Provides that the DOJ DNA Laboratory is to serve as a repository for blood specimens, buccal swab, and other biological samples collected and is required to analyze specimens and samples and store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records related to the following: AB 1492 Page 6 a) Forensic casework and forensic unknowns; b) Known and evidentiary specimens and samples from crime scenes or criminal investigations; c) Missing or unidentified persons; d) Persons required to provide specimens, samples, and print impressions e) Legally obtained samples; and f) Anonymous DNA records used for training, research, statistical analysis of populations, quality assurance, or quality control. 9)States that all DNA and forensic identification profiles and other identification information retained by DOJ pursuant to the Act are exempt from any law requiring disclosure of information to the public and are confidential except as otherwise provided in the Act. 10)Provides that, except to the defense counsel, upon court order, of a defendant whose DNA and other forensic identification information were developed pursuant to the Act, DOJ and local public DNA laboratories shall not otherwise be compelled in a criminal or civil proceeding to provide any DNA profile or forensic identification database or data bank information or its computer database program software or structures to any person or party seeking such records or information whether by subpoena, discovery, or other procedural device or inquiry. AB 1492 Page 7 11)Punishes as an alternate misdemeanor/felony any person who knowingly uses an offender specimen, sample, or DNA profile collected pursuant to the Act for other than criminal identification or exclusion purposes, or for other than the identification of missing persons, or who knowingly discloses DNA or other forensic identification information developed as specified to an unauthorized individual or agency, for other than criminal identification or exclusion purposes, or for the identification of missing persons, by imprisonment in a county jail not exceeding one year or by imprisonment in the state prison for 16 months, or two or three years. 12)Specifies that it is not a violation of the above provision for the DOJ DNA Laboratory, or an organization retained as a DOJ agent, or a local public laboratory to use anonymous records or criminal history information obtained pursuant to the Act for training, research, statistical analysis of populations, quality assurance, or quality control. 13)Provides that the Act does not prohibit DOJ, in its sole discretion, from the sharing or disseminating of population database or data bank information, DNA profile or forensic identification database or data bank information, analytical data and results generated for forensic identification database and data bank purposes, or protocol and forensic DNA analysis methods and quality assurance or quality control procedures with any third party that DOJ deems necessary to assist the department's crime laboratory with statistical analyses of population databases, or the analyses of forensic protocol, research methods, or quality control procedures, or to assist in the recovery or identification of human remains for humanitarian purposes, including identification of missing persons. 14)Specifies 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 AB 1492 Page 8 send them promptly to the DOJ. 15)Requires the DNA Laboratory of DOJ to establish procedures for entering data bank and database information. 16)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. a) Following arrest, no accusatory pleading has been filed within the applicable period allowed by law charging the person with a qualifying offense as set forth in subdivision (a) of Section 296 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 b) The underlying conviction or disposition serving as the basis for including the DNA profile has been reversed and the case dismissed; or, c) The person has been found factually innocent of the underlying offense pursuant to Welfare and Institutions Code Sections 851.8 or 781.5; or, d) The defendant has been found not guilty or the defendant has been acquitted of the underlying offense. AB 1492 Page 9 17)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 DOJ, 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. 18)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: a) The written request for expungement pursuant to this section; b) 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. c) Proof of written notice to the prosecuting attorney and the DOJ that expungement has been requested. AB 1492 Page 10 d) 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 DOJ of the expungement request, and that the court has not received an objection from the DOJ or the prosecuting attorney. 19)States that the DOJ 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 described in Penal Code Section 296(a), or as a condition of a plea. 20)The DOJ 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. 21) 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, or dismissal following conviction. AS PASSED BY THE ASSEMBLY, this bill provided that a person who is found guilty of fraud related to the circulating or filing of an in-lieu-filing-fee petition or political party qualification petition is subject to the same penalties as a person found guilty of other forms of petition fraud. FISCAL EFFECT: According to the Senate Appropriations AB 1492 Page 11 Committee: 1)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. 2)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. 3)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 COMMENTS: According to the author, "AB 1492 will ensure that California has a back-up DNA collection process in place, while the California Supreme Court considers People v. Buza. DNA collection from felony arrestees was halted during the months between the lower court's decision and the California Supreme Court granting review of the Buza decision and AB 1492 seeks to ensure that there is a system for DNA collection from felony arrestees in place should the California Supreme Court uphold 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), thus furthering the voters' intent in passing Proposition 69 [2004] and creating parity between California's DNA collection laws and those upheld by the US [United States] 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' AB 1492 Page 12 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 brought to justice." This bill was substantially amended in the Senate and the Assembly approved provisions of this bill were deleted. This bill as amended in the Senate is inconsistent with Assembly actions. The language in this bill is substantially similar to AB 84 (Gatto) of the current legislative session, which was held in the Assembly Appropriations Committee Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0002370