BILL NUMBER: AB 1848 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 15, 2016
INTRODUCED BY Assembly Member Chiu
FEBRUARY 9, 2016
An act to amend Section 680 of add Section
680.1 to the Penal Code, relating to DNA evidence.
LEGISLATIVE COUNSEL'S DIGEST
AB 1848, as amended, Chiu. DNA evidence.
Existing law establishes the "Sexual Assault Victims' DNA Bill of
Rights," which, among other things, encourages a law enforcement
agency assigned to investigate specified sexual assault offenses to
perform DNA testing of rape kit evidence or other crime scene
evidence in a timely manner to assure the longest possible statute of
limitations. Existing law also requires a law enforcement agency to
inform victims of certain unsolved sexual assault offenses if the law
enforcement agency elects not to analyze DNA evidence within certain
time limits.
This bill would require law enforcement agencies to report
information regarding rape kit evidence to the department through a
database established by the department. The bill would require that
information to include, among other things, the number of kits
collected, the number of kits from which one or more biological
evidence samples were submitted to a DNA laboratory for analysis, and
the number of kits from which a probative DNA profile was generated.
The bill would additionally require a public DNA laboratory, or a
law enforcement agency contracting with a private laboratory, to
provide a reason for not testing a sample every 120 days the sample
is untested. By imposing additional duties on local law enforcement,
this bill would create a state-mandated local program.
This bill would require the department to file a report to the
Legislature on a quarterly basis summarizing the information in its
database. The bill would prohibit law enforcement agencies or
laboratories from being compelled to provide any contents of the
database in a civil or criminal case, except as required by a law
enforcement agency's duty to produce exculpatory evidence to a
defendant in a criminal case.
Existing constitutional provisions require that a statute that
limits the right of access to the meetings of public bodies or the
writings of public officials and agencies be adopted with findings
demonstrating the interest protected by the limitation and the need
for protecting that interest.
This bill would make legislative findings to that effect.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
This bill would make technical, nonsubstantive changes to these
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1 . Section 680.1 is added to
the Penal Code , to read:
680.1. (a) The Legislature finds and declares the following:
(1) There is a significant public interest in knowing what
percentage of rape kit biological samples are analyzed for the
perpetrator's DNA profile, as well as why any untested rape kit
samples are not analyzed. Currently, there is no mandatory statewide
tracking mechanism in place to collect and report these metrics. It
is the intent of the Legislature in enacting this section, pursuant
to recommendations by the California State Auditor to the Joint
Legislative Audit Committee, to correct that.
(2) In 2015, the Department of Justice created the Sexual Assault
Forensic Evidence Tracking (SAFE-T) database to track the status of
all sexual assault evidence kits collected in the state based on
voluntary data input from law enforcement agencies. It is the intent
of the Legislature by enacting this section to require participation
in that database.
(b) On a schedule set forth by the Department of Justice, each law
enforcement agency that has investigated a case involving the
collection of sexual assault kit evidence during the relevant period
of time, as determined by the department, shall report to the
department, through the SAFE-T database, the data required by the
department in its communications to law enforcement. The data shall
include, but are not limited to, the following:
(1) The number of kits collected during the period.
(2) The number of kits from which one or more biological evidence
samples were submitted to a DNA laboratory for analysis.
(3) The number of kits from which a probative DNA profile was
generated.
(4) The reason or reasons for not submitting evidence from a given
rape kit to a DNA laboratory for processing.
(c) After 120 days following submission of rape kit biological
evidence for processing, if a public DNA laboratory has not conducted
DNA testing, that laboratory shall provide the reasons for the
status in the appropriate SAFE-T data field. If the investigating law
enforcement agency has contracted with a private laboratory to
conduct DNA testing on rape kit evidence, the submitting law
enforcement agency shall provide the 120-day update in SAFE-T. The
process described in this subdivision shall take place every 120 days
until DNA testing occurs.
(d) The SAFE-T database shall not contain any identifying
information about a victim or a suspect, shall not contain any DNA
profiles, and shall not contain any information that would impair a
pending criminal investigation.
(e) On a quarterly basis, the Department of Justice shall file a
report to the Legislature in compliance with Section 9795 of the
Government Code summarizing data entered into the SAFE-T database
during that year. The report shall not reference individual victims,
suspects, investigations, or prosecutions. The report shall be made
public by the department.
(f) Except as provided in subdivision (e), in order to protect the
confidentiality of the SAFE-T database information, SAFE-T database
contents shall be confidential and a participating law enforcement
agency or laboratory shall not be compelled in a criminal or civil
proceeding, except as required by a law enforcement agency's duty to
produce exculpatory evidence to a criminal defendant, to provide any
SAFE-T database contents to any person or party seeking those records
or information.
SEC. 2. The Legislature finds and declares that
Section 1 of this act, which adds Section 680.1 to the Penal Code,
imposes a limitation on the public's right of access to the meetings
of public bodies or the writings of public officials and agencies
within the meaning of Section 3 of Article I of the California
Constitution. Pursuant to that constitutional provision, the
Legislature makes the following findings to demonstrate the interest
protected by this limitation and the need for protecting that
interest:
In order to protect the privacy of victims of crime, it is
necessary to keep the information in the SAFE-T database
confidential.
SEC. 3. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
SECTION 1. Section 680 of the Penal Code is
amended to read:
680. (a) This section shall be known as and may be cited as the
"Sexual Assault Victims' DNA Bill of Rights."
(b) The Legislature finds and declares all of the following:
(1) Deoxyribonucleic acid (DNA) and forensic identification
analysis is a powerful law enforcement tool for identifying and
prosecuting sexual assault offenders.
(2) Existing law requires an adult arrested for or charged with a
felony and a juvenile adjudicated for a felony to submit DNA samples
as a result of that arrest, charge, or adjudication.
(3) Victims of sexual assault have a strong interest in the
investigation and prosecution of their cases.
(4) Law enforcement agencies have an obligation to victims of
sexual assault in the proper handling, retention, and timely DNA
testing of rape kit evidence or other crime scene evidence and to be
responsive to victims concerning the developments of forensic testing
and the investigation of their cases.
(5) The growth of the Department of Justice's Cal-DNA databank and
the national databank through the Combined DNA Index System (CODIS)
makes it possible for many sexual assault perpetrators to be
identified after their first offense, provided that rape kit evidence
is analyzed in a timely manner.
(6) Timely DNA analysis of rape kit evidence is a core public
safety issue affecting men, women, and children in the State of
California. It is the intent of the Legislature, in order to further
public safety, to encourage DNA analysis of rape kit evidence within
the time limits imposed by subparagraphs (A) and (B) of paragraph (1)
of subdivision (g) of Section 803.
(7) In order to ensure that sexual assault forensic evidence is
analyzed within the two-year timeframe required by subparagraphs (A)
and (B) of paragraph (1) of subdivision (g) of Section 803 and to
ensure the longest possible statute of limitations for sex offenses,
including sex offenses designated pursuant to those subparagraphs,
the following should occur:
(A) A law enforcement agency in whose jurisdiction a sex offense
specified in Section 261, 261.5, 262, 286, 288a, or 289 occurred,
should do one of the following for any sexual assault forensic
evidence received by the law enforcement agency on or after January
1, 2016:
(i) Submit sexual assault forensic evidence to the crime lab
within 20 days after it is booked into evidence.
(ii) Ensure that a rapid turnaround DNA program is in place to
submit forensic evidence collected from the victim of a sexual
assault directly from the medical facility where the victim is
examined to the crime lab within five days after the evidence is
obtained from the victim.
(B) The crime lab should do one of the following for any sexual
assault forensic evidence received by the crime lab on or after
January 1, 2016:
(i) Process sexual assault forensic evidence, create DNA profiles
when able, and upload qualifying DNA profiles into CODIS as soon as
practically possible, but no later than 120 days after initially
receiving the evidence.
(ii) Transmit the sexual assault forensic evidence to another
crime lab as soon as practically possible, but no later than 30 days
after initially receiving the evidence, for processing of the
evidence for the presence of DNA. If a DNA profile is created, the
transmitting crime lab should upload the profile into CODIS as soon
as practically possible, but no longer than 30 days after being
notified about the presence of DNA.
(C) This subdivision does not require a lab to test all items of
forensic evidence obtained in a sexual assault forensic evidence
examination. A lab is considered to be in compliance with the
guidelines of this section when representative samples of the
evidence are processed by the lab in an effort to detect the foreign
DNA of the perpetrator.
(D) This section does not require a DNA profile to be uploaded
into CODIS if the DNA profile does not meet federal guidelines
regarding the uploading of DNA profiles into CODIS.
(E) For purposes of this section, a "rapid turnaround DNA program"
is a program for the training of sexual assault team personnel in
the selection of representative samples of forensic evidence from the
victim to be the best evidence, based on the medical evaluation and
patient history, the collection and preservation of that evidence,
and the transfer of the evidence directly from the medical facility
to the crime lab, which is adopted pursuant to a written agreement
between the law enforcement agency, the crime lab, and the medical
facility where the sexual assault team is based.
(8) For the purpose of this section, "law enforcement" means the
law enforcement agency with the primary responsibility for
investigating an alleged sexual assault.
(c) (1) Upon the request of a sexual assault victim, the law
enforcement agency investigating a violation of Section 261, 261.5,
262, 286, 288a, or 289 may inform the victim of the status of the DNA
testing of the rape kit evidence or other crime scene evidence from
the victim's case. The law enforcement agency may, at its discretion,
require that the victim's request be in writing. The law enforcement
agency may respond to the victim's request with either an oral or
written communication, or by email, if an email address is available.
Nothing in this subdivision requires that the law enforcement agency
communicate with the victim or the victim's designee regarding the
status of DNA testing absent a specific request from the victim or
the victim's designee.
(2) Subject to the commitment of sufficient resources to respond
to requests for information, sexual assault victims have the
following rights:
(A) The right to be informed whether or not a DNA profile of the
assailant was obtained from the testing of the rape kit evidence or
other crime scene evidence from their case.
(B) The right to be informed whether or not the DNA profile of the
assailant developed from the rape kit evidence or other crime scene
evidence has been entered into the Department of Justice Data Bank of
case evidence.
(C) The right to be informed whether or not there is a match
between the DNA profile of the assailant developed from the rape kit
evidence or other crime scene evidence and a DNA profile contained in
the Department of Justice Convicted Offender DNA Data Base, provided
that disclosure would not impede or compromise an ongoing
investigation.
(3) This subdivision is intended to encourage law enforcement
agencies to notify victims of information which is in their
possession. It is not intended to affect the manner of or frequency
with which the Department of Justice provides this information to law
enforcement agencies.
(d) If the law enforcement agency does not analyze DNA evidence
within six months prior to the time limits established by
subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of
Section 803, a victim of a sexual assault offense specified in
Section 261, 261.5, 262, 286, 288a, or 289 shall be informed, either
orally or in writing, of that fact by the law enforcement agency.
(e) If the law enforcement agency intends to destroy or dispose of
rape kit evidence or other crime scene evidence from an unsolved
sexual assault case prior to the expiration of the statute of
limitations as set forth in Section 803, a victim of a violation of
Section 261, 261.5, 262, 286, 288a, or 289 shall be given written
notification by the law enforcement agency of that intention.
(f) Written notification under subdivision (d) or (e) shall be
made at least 60 days prior to the destruction or disposal of the
rape kit evidence or other crime scene evidence from an unsolved
sexual assault case where the election not to analyze the DNA or the
destruction or disposal occurs prior to the expiration of the statute
of limitations specified in subdivision (g) of Section 803.
(g) A sexual assault victim may designate a sexual assault victim
advocate, or other support person of the victim's choosing, to act as
a recipient of the above information required to be provided by this
section.
(h) It is the intent of the Legislature that a law enforcement
agency responsible for providing information under subdivision (c) do
so in a timely manner and, upon request of the victim or the victim'
s designee, advise the victim or the victim's designee of any
significant changes in the information of which the law enforcement
agency is aware. In order to be entitled to receive notice under this
section, the victim or the victim's designee shall keep appropriate
authorities informed of the name, address, telephone number, and
email address of the person to whom the information should be
provided, and any changes of the name, address, telephone number, and
email address, if an email address is available.
(i) A defendant or person accused or convicted of a crime against
the victim shall have no standing to object to a failure to comply
with this section. The failure to provide a right or notice to a
sexual assault victim under this section may not be used by a
defendant to seek to have the conviction or sentence set aside.
(j) The sole civil or criminal remedy available to a sexual
assault victim for a law enforcement agency's failure to fulfill its
responsibilities under this section is standing to file a writ of
mandamus to require compliance with subdivision (d) or (e).