BILL ANALYSIS Ó
AB 1492
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CONCURRENCE IN SENATE AMENDMENTS
AB
1492 (Gatto)
As Amended September 4, 2015
Majority vote
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|ASSEMBLY: | 74-0 | (May 22, |SENATE: | 40-0 | (September 10, |
| | |2015) | | |2015) |
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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
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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:
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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.
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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
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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:
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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.
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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
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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.
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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.
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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
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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'
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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