BILL ANALYSIS
AB 2009
Page 1
Date of Hearing: March 23, 2010
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2009 (Logue) - As Introduced: February 17, 2010
REVISED
SUMMARY : Permits counties to use excess funds from the state's
DNA Identification Fund to reimburse law enforcement and
district attorneys for use of an independent laboratory, other
than the Department of Justice (DOJ), to expedite the analysis
of samples. Specifically, this bill :
1)Provides that a counties may use remaining share of funds from
the state's DNA Identification Fund attributable to the
increase in fees as required by the DNA Fingerprint,
Unresolved Crime and Innocence Act may be used by a local
sheriff, police, district attorney, or regional state crime
laboratory for expenditures and administrative costs made or
incurred for utilizing an authorized laboratory, other than
DOJ's Laboratory, to expedite the analysis of crime scene
samples in order to expedite and proceed with a pending
criminal action or investigation within that county.
2)States that the Legislature finds and declares that this bill
furthers, and is consistent with, the purpose of the DNA
Fingerprint, Unsolved Crime and Innocence Protection Act to
enhance the use of DNA identification evidence for the purpose
of accurate and expeditious crime solving and for exonerating
the innocent by accelerating the testing of DNA samples that
cannot be handled in an expeditious manner without the use of
an outside laboratory.
EXISTING LAW :
1)States that except as otherwise provided in this section, for
the purpose of implementing the DNA Fingerprint, Unsolved
Crime and Innocence Protection Act, there shall be levied an
additional penalty of $1 for every $10, or part of $10, in
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each county upon every fine, penalty, or forfeiture imposed
and collected by the courts for all criminal offenses,
including all offenses involving a violation of the Vehicle
Code or any local ordinance adopted pursuant to the Vehicle
Code. [California Government Code Section 76104.6(a)(1).]
2)States that the penalty imposed by this section shall be
collected together with and in the same manner as specified
sections. These moneys shall be taken from fines and
forfeitures deposited with the county treasurer prior to any
divisions as specified. The board of supervisors shall
establish in the county treasury a DNA Identification Fund
into which shall be deposited the collected moneys pursuant to
this section. The moneys of the fund shall be allocated.
[California Government Code Section 76104.6(a)(2).]
3)States that this additional penalty does not apply to the
following [California Government Code Section 76104.6(a)(3)]:
a) Any restitution fine;
b) Specified penalties authorized under the Penal Code;
c) Specified parking offenses; and,
d) The state surcharge authorized by the Penal Code,
4)Provides that the fund moneys described, together with any
interest earned thereon, shall be held by the county treasurer
separate from any funds subject to transfer or division
pursuant to Penal Code Section 1463. Deposits to the fund may
continue through and including the 20th year after the initial
calendar year in which the surcharge is collected, or longer
if and as necessary to make payments upon any lease or
leaseback arrangement utilized to finance any of the projects
specified herein. [California Government Code Section
76104.6(b)(1).]
5)States that on the last day of each calendar quarter of the
year specified in this subdivision, the county treasurer shall
transfer fund moneys in the county's DNA Identification Fund
to the State Controller for credit to the state's DNA
Identification Fund, which is hereby established in the State
Treasury, as follows [California Government Code Section
76104.6(b)(2)]:
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a) In the first two calendar years following the effective
date of this section, 70% of the amounts collected,
including interest earned thereon;
b) In the third calendar year following the effective date
of this section, 50% of the amounts collected, including
interest earned thereon; and,
c) In the fourth calendar year following the effective date
of this section and in each calendar year thereafter, 25%
of the amounts collected, including interest earned
thereon.
6)Funds remaining in the county's DNA Identification Fund shall
be used only to reimburse local sheriff or other law
enforcement agencies to collect DNA specimens, samples, and
print impressions pursuant to this chapter; for expenditures
and administrative costs made or incurred to comply with
specified requirements, including the procurement of equipment
and software integral to confirming that a person qualifies
for entry into DOJ's DNA Database and Data Bank Program; and
to local sheriff, police, district attorney, and regional
state crime laboratories for expenditures and administrative
costs made or incurred in connection with the processing,
analysis, tracking, and storage of DNA crime scene samples
from cases in which DNA evidence would be useful in
identifying or prosecuting suspects, including the procurement
of equipment and software for the processing, analysis,
tracking, and storage of DNA crime scene samples from unsolved
cases. [California Government Code Section 76104.6(b)(3).]
7)The state's DNA Identification Fund shall be administered by
the DOJ. Funds in the state's DNA Identification Fund, upon
appropriation by the Legislature, shall be used by the
Attorney General (AG) only to support DNA testing California
and to offset the impacts of increased testing and shall be
allocated as follows [California Government Code Section
76104.6(b)(4)]:
a) Of the amount transferred, as specified, 90% to the
Department of Justice's DNA Laboratory, first, to comply
with the requirements of Penal Code Section 298.3 and,
second, for expenditures and administrative costs made or
incurred in connection with the processing, analysis,
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tracking, and storage of DNA specimens and samples
including the procurement of equipment and software for the
processing, analysis, tracking, and storage of DNA samples
and specimens obtained pursuant to the DNA and Forensic
Identification Database and Databank Act, as amended, and
10% to DOJ's Information Bureau Criminal History Unit for
expenditures and administrative costs that have been
approved by the Chief of DOJ's Bureau of Forensic Services
made or incurred to update equipment and software to
facilitate compliance with the requirements of Penal Code
Section 299.5(e). [California Government Code Section
76104.6(b)(4)(A).]
b) Of the amount transferred, as specified, funds shall be
allocated by the Department of Justice's DNA Laboratory,
first, to comply with the requirements of Penal Code
Section 298.3 and, second, for expenditures and
administrative costs made or incurred in connection with
the processing, analysis, tracking, and storage of DNA
specimens and samples including the procurement of
equipment and software for the processing, analysis,
tracking, and storage of DNA samples and specimens obtained
pursuant to the DNA and Forensic Identification Database
and Databank Act, as amended. [California Government Code
Section 76104.6(b)(4)(B).]
c) Of the amount transferred, as specified, funds shall be
allocated by DOJ to the DNA Laboratory to comply with the
requirements of Penal Code Section 298.3 and for
expenditures and administrative costs made or incurred in
connection with the processing, analysis, tracking, and
storage of DNA specimens and samples including the
procurement of equipment and software for the processing,
analysis, tracking, and storage of DNA samples and
specimens obtained pursuant to the DNA and Forensic
Identification Database and Databank Act, as amended.
[California Government Code Section 76104.6(b)(4)(C).]
8)States that on or before April 1 in the year following
adoption of this section, and annually thereafter, the board
of supervisors of each county shall submit a report to the
Legislature and DOJ. The report shall include the total
amount of fines collected and allocated pursuant to this
section, and the amounts expended by the county for each
program authorized, as specified. DOJ shall make the reports
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publicly available on DOJ's Web site. [California Government
Code Section 76104.6(c).]
9)Provides that all requirements imposed on DOJ pursuant to the
DNA Fingerprint, Unsolved Crime and Innocence Protection Act
are contingent upon the availability of funding and are
limited by revenue, on a fiscal year basis, received by DOJ
pursuant to this section and any additional appropriation
approved by the Legislature for purposes related to
implementing this measure. [California Government Code
Section 76104.6(d).]
10)States that upon approval of the DNA Fingerprint, Unsolved
Crime and Innocence Protection Act, the Legislature shall loan
DOJ's General Fund in the amount of $7 million for purposes of
implementing that act. This loan shall be repaid with
interest calculated at the rate earned by the Pooled Money
Investment Account at the time the loan is made. Principal
and interest on the loan shall be repaid in full no later than
four years from the date the loan was made and shall be repaid
from revenue generated pursuant to this section. [California
Government Code Section 76104.6(e).]
11)Specifies that notwithstanding any other provision of law,
the Controller may use the state's DNA Identification Fund,
created as specified, for loans to the General Fund as
provided in Sections 16310 and 16381. Any such loan shall be
repaid from the General Fund with interest computed at 110% of
the Pooled Money Investment Account rate, with the interest
commencing to accrue on the date the loan is made from the
fund. This subdivision does not authorize any transfer that
will interfere with the carrying out of the object for which
the state's DNA Identification Fund was created. [California
Government Code Section 76104.6(f).]
12)Specifies that DOJ laboratories accredited by the American
Society of Crime Laboratory Directors Laboratory Accreditation
Board (ASCLD/LAB), any certifying body approved by the
ASCLD/LAB or any law enforcement crime laboratory designated
by the DOJ accredited by the ASCLD/LAB, or any certifying body
approved by them are authorized to analyze crime scene samples
and other samples of known and unknown origin and to compare
and check the forensic identification profiles, including DNA
profiles, of these samples against available DNA and forensic
identification data banks in order to establish identity and
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origin of samples for identification purposes. [Penal Code
Section 297(a)(1).]
13)Provides that a biological sample obtained from a suspect in
a criminal investigation for the commission of any crime may
be analyzed for forensic profiles, including DNA profiles, as
specified, and then compared by the DOJ in and between as many
cases and investigations as necessary. [Penal Code Section
297(b)(1).]
14)States that the law enforcement agency submitting a specimen
sample or print impression to the DNA Laboratory of the DOJ or
law enforcement crime laboratory, as specified, shall inform
the DOJ Laboratory within two years whether the person remains
a suspect in a criminal investigation. States that upon
written notification from a law enforcement agency, as
specified, the DOJ DNA Laboratory shall remove the suspect
sample from its data bank files. However, any identification,
warrant, arrest or prosecution based upon a data bank match
shall not be invalidated or dismissed due to a failure to
purge files. [Penal Code Section 297(b)(2).]
15)States that nothing in this section shall preclude local law
enforcement DNA laboratories from maintaining local forensic
databases or performing forensic analyses, including DNA
profiling, independently from the DOJ DNA and Forensic
Identification Data Base and Data Bank Program. [Penal Code
Section 297(d).]
16)Provides that specimens, samples and print impressions shall
be collected from specified persons for present and past
qualifying offenses of record, including collection from any
adult person following arrest for a felony offense, as
specified. [Penal Code Section 296.1(a)(1).]
17)States that every adult person arrested for a felony offense,
as specified, shall provide a buccal swab sample and thumb and
palm print impressions and any blood or other specimens
immediately following arrest, or during the booking or intake
or reception center process as soon as administratively
practicable after arrest, but in any case prior to release on
bail or pending trial or any physical release from custody.
[Penal Code Section 296.1(a)(1)(A).]
18)Provides that if the person did not have specimens, samples,
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and prints taken immediately following arrest or during
booking, the court shall order the person to report within
five calendar days to a county jail facility or other
designated facility to provide the specimens. [Penal Code
Section 296.1(a)(1)(B).]
19)States that specified persons who are on probation or parole
for any felony or misdemeanor offense, as specified, shall
provide buccal swab samples under specified conditions.
[Penal Code Section 296.1(a)(3).]
20)Requires persons who are parole violators or otherwise
returned to custody shall provide buccal swab samples, thumb
and palm print impressions, and any other blood or specimen
required, under specified conditions. [Penal Code Section
296.1(a)(4).]
21)States that such samples and specimens shall be collected
from persons accepted into California from other jurisdictions
under the interstate compacts (Penal Code 11175) or other
reciprocal agreements with any state, federal agency or other
provision of law. [Penal Code Section 296.1(a)(5).]
22)Provides that all of the above-cited paragraphs shall have
retroactive application. [Penal Code Section 296.1(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The backlog of
submittals to the DNA labs is significant. Unless the case is
a high-profile homicide, counties may have to wait over a year
for a DNA result. Private lab work can produce results in two
weeks.
"Yuba County cites two examples of slow DNA work at the State
labs. First, there was a rape case with an offense date of
June 6, 2008. The biological samples were first submitted to
DOJ in August of 2008. The final DNA analysis report was
provided to us November 16th, 2009.
"A second case - a stranger rape - involved a female Beale AFB
airman as the victim. The offense date was January 20, 2008.
The biological samples were submitted to DOJ on January 25th,
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2008. The final DNA analysis was completed on February 4th,
2009. This was an expedited analysis, with the Yuba County DA
office checking with the lab every month, as the victim was
scheduled to be deployed to Iraq/Afghanistan. The County
managed to delay the deployment, but doing so strained
relationships with the Air Force. The suspect turned out to
be a cable TV installer whose job put him in the homes of
cable subscribers.
"The County would like to make some of the funds generated from
Proposition 69 and placed in the County's trust fund available
to pay for the costs of DNA analysis and testimony through a
private lab.
"The County is not trying to impact funding that goes to the
State lab under the program - and in fact the Yuba proposal
would not in any way affect the portion of the monies
collected which go to the state. The proposal would only free
up balances otherwise unusable at the local level.
"If statute was changed to allow funds generated under Prop. 69
to be used for private labs, case turnaround could be in as
little as 2 weeks. The fund balance in Yuba is growing
significantly. At the end of CY 2005 it was $1,045; CY 2006
was $28,350; CY 2007 was $83,169; and CY 2008 was $148,777.
At the rate the fund balance increases, there will likely be
over $200,000 at the end of this calendar year."
2)Background : As stated in the background submitted by the
author, "[p]roposition 69 enacted in 2004 created two
different local funds. Government Code (GC) section 76104.5
created a discretionary fund that a County Board of
Supervisors could adopt that would be payable for certain DNA
related technology purchased or leased at the county level
(this fund was not adopted in Yuba). GC 76104.6 created a
mandatory fund that collected $1 for every $10 of criminal
fines, a portion of which goes back to the state for DNA
related programs with the remainder placed in a county trust
fund. That trust fund reimburses local law enforcement for
the costs related to DNA collection or the purchase of items
for local crime labs.
" DNA forensic work in criminal cases is currently done in one of
three ways for DA's offices throughout the state: 1) by
county crime labs with DNA capability (for example, Sacramento
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has its own crime lab for their work); 2) by the state labs
(for those of counties, like Yuba, using their services); and
3) by private labs which meet the certification standards for
doing such forensic work.
"Yuba County currently use s the DOJ labs for all forensic work -
everything from alcohol results in drunk driving cases, hard
drug analysis, fingerprint and toolmark work, and DNA. Some of
this work is done under a contract that sets reimbursement
rates (for instance, certain toxicology analysis), but the
County is not obliged to use DOJ for any of this work. The
County can contract with a private lab for this work. In
fact, a number of counties contract with private labs right
now for the forensic work on drunk driving cases - Yuba
prefers using DOJ and ha s a great working relationship with
them.
" In the case of DNA work, a County can direct that the evidence
be sent to a private lab and not use DOJ at all. This is not
unusual. Some counties are already doing this with DNA
evidence as they have the funds to do so. With current
restrictions on funding, Yuba County does not have such funds.
"There are several private labs meeting quality assurance
standards currently offering these services. In fact, DOJ at
one point was actually contracting with a private lab to do
advanced DNA analysis for them - one of these cases was a Yuba
case and they used a lab outside California to do the work. "
3)What the Excess Funds Currently Repay : Under current law,
funds remaining in the county's DNA Identification Fund shall
be used only to reimburse local sheriff or other law
enforcement agencies to collect DNA specimens, samples, and
print impressions, as specified; for expenditures and
administrative costs made or incurred to comply with specified
requirements including the procurement of equipment and
software integral to confirming that a person qualifies for
entry into the Department of Justice DNA Database and Data
Bank Program; and to local sheriff, police, district attorney,
and regional state crime laboratories for expenditures and
administrative costs made or incurred in connection with the
processing, analysis, tracking, and storage of DNA crime scene
samples from cases in which DNA evidence would be useful in
identifying or prosecuting suspects, including the procurement
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of equipment and software for the processing, analysis,
tracking, and storage of DNA crime scene samples from unsolved
cases.
This bill allows these funds to additionally reimburse law
enforcement and district attorneys for the cost of using
outside laboratories for the testing of DNA evidence.
4)Background of Proposition 69 Generally : Proposition 69 was
passed in November 2004 and made substantial changes to the
laws regarding the CAL-DNA Data Bank Program. Among these
changes is the requirement that all convicted felons provide
DNA samples. This requirement has created a significant
backlog in crime laboratories throughout California.
Proposition 69 also provides how accredited laboratories are
authorized to analyze crime scene samples. The law
enforcement personnel authorized to collect DNA samples is
also identified, both generically and with reference to
specific peace officer classifications.
Weber v. Lockyer was a class action brought by former arrestees
and former convicts against the AG and other state law
enforcement officials seeking injunctive and declaratory
relief against the law that they contended subjected all adult
felony arrestees and former convicted felons to compulsory DNA
testing as a violation of the 4th and 14th amendments to the
United States Constitution.
The court described Proposition 69 as follows: "Proposition 69
amended the California Penal Code, Sections 295 et seq. to
expand the group of people subject to mandatory DNA testing
and inclusion in California's DNA Database and Data Bank
Program. Previously, persons convicted of certain sex crimes
and other violent crimes were subject to mandatory DNA
testing. Effective November 3, 2004, persons convicted of any
felony offense and persons arrested for or charged with
murder, manslaughter and certain sex crimes became subject to
mandatory DNA testing. Effective January 1, 2009, adults
arrested for or charged with any felony offense become subject
to mandatory DNA testing (the "2009 arrestee provision").
Under the new law, DNA samples are generally taken by buccal
cheek swab.
"[P]laintiffs attack the provisions of Proposition 69 that
allegedly subject all adult felony arrestees and former
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convicted felons to compulsory DNA testing. Plaintiffs
contend that subjecting people who have not been convicted of
a crime and people who have been previously convicted but who
are no longer subject to the criminal justice system to
compulsory DNA testing violates their rights under the 4th and
14th Amendments.
"[P]laintiffs emphasize that Proposition 69 includes a section
on 'retroactive application' stating that the new requirements
'shall have retroactive application' and that testing shall
occur 'regardless of when the crime charged or committed
became a qualifying offense . . . . (citing Penal Code Section
296.1(b)(1). Based on what they view as the plain language of
Proposition 69, plaintiffs argue that they are currently
subject to DNA sampling or will be so subject on January 1,
2009. They argue that a draft, non-binding guidance document
issued by the Attorney General does not ensure that the
statute will not be enforced against
them . . . . "
In determining whether or not the plaintiffs had standing to sue
in this case, the court observed that prosecuting authorities
have not communicated any specific warnings or threats to
initiate DNA testing against the plaintiffs. In response, the
plaintiffs argued that DNA testing under Proposition 69 is a
mandatory administrative duty, thus satisfying one of three
tests articulated by case law for standing.
However, the court found that the AG's bulletin was issued by
the state's chief law officer and can be reasonably expected
to establish uniform state policy for the implementation of
Proposition 69. The court also noted that only one of the
plaintiffs is presently subject to DNA testing and that the
others would not be tested under the new law until, at the
earliest, January 1, 2009. The court observed that the
state's interpretation and enforcement of Proposition 69 will
become much clearer as January 2009 nears. With this
information, the court will be better able to evaluate whether
plaintiffs have a reasonable fear of DNA testing under
Proposition 69 and noted that "there are situations where,
even though an allegedly injurious event is certain to occur,
the court may delay resolution of constitutional questions
until a time closer to the actual occurrence of a disputed
event."
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The court, therefore, decided this case should not be judicially
reviewed at this present time.
REGISTERED SUPPORT / OPPOSITION :
Support
Yuba County Board of Supervisors (Sponsor)
Peace Officers Research Association
of California
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744