BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 2009 (Logue) 9
As Amended June 16, 2010
Hearing date: June 29, 2010
Government Code
MK:mc
COUNTY PENALTIES: FUNDING FOR DNA ANALYSIS:
EXPEDITED PROCESSING
HISTORY
Source: Yuba County Board of Supervisors
Prior Legislation: Proposition 69, passed November 2004
Support: California State Association of Counties; Peace
Officers Research Association of California
Opposition:None known
Assembly Floor Vote: Ayes 71 - Noes 0
KEY ISSUE
SHOULD COUNTIES BE PERMITTED TO AUTHORIZE THE EXCESS FUNDS FROM THE
STATE'S DNA IDENTIFICATION FUND TO BE USED TO REIMBURSE LAW
ENFORCEMENT AND DISTRICT ATTORNEYS FOR USE OF INDEPENDENT
LABORATORIES TO ANALYZE SAMPLES?
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PURPOSE
The purpose of this bill is to permit county board of
supervisors to authorize the use of 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.
Existing law 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 Department of Justice (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 origin of samples for
identification purposes. (Penal Code 297(a)(1).)
Existing law 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 297(b)(1).)
Existing law 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 and states that
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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 297(b)(2).)
Existing law 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
297(d).)
Existing law 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 296.1(a)(1).)
Existing law 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 296.1(a)(1)(A).)
Existing law provides that if the person did not have specimens,
samples, 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
296.1(a)(1)(B).)
Existing law 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 296.1(a)(3).)
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Existing law 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
296.1(a)(4).)
Existing law 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 296.1(a)(5).)
Existing law 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 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.
(Government Code 76104.6(a)(1).)
Existing law 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.
(Government Code 76104.6(a)(2).)
Existing law states that this additional penalty does not apply
to the following:
any restitution fine;
specified penalties authorized under the Penal Code;
specified parking offenses; and,
the state surcharge authorized by the Penal Code,
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(Government Code 76104.6(a)(3).)
Existing law 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. (Government Code 76104.6(b)(1).)
Existing law 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 (Government Code
76104.6(b)(2)):
In the first two calendar years following the effective
date of this section, 70% of the amounts collected,
including interest earned thereon;
In the third calendar year following the effective date
of this section, 50% of the amounts collected, including
interest earned thereon; and,
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.
Existing law provides that 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
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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. (Government Code 76104.6(b)(3).)
Existing law provides that 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 (Government Code
76104.6(b)(4)):
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,
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). (Government Code 76104.6(b)(4)(A).)
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
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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. (Government Code
76104.6(b)(4)(B).)
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.
(Government Code 76104.6(b)(4)(C).)
Existing law 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 publicly available on
DOJ's Web site. (Government Code 76104.6(c).)
Existing law 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. (Government Code 76104.6(d).)
Existing law 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
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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. (Government Code
76104.6(e).)
Existing law 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. (Government Code
76104.6(f).)
This bill provides that funds remaining in the county's DNA
Identification Fund may also be used, if authorized by a
resolution of the county board of supervisors, to reimburse a
local sheriff, police, district attorney, or regional state
crime laboratory for expenditures and administrative costs made
or incurred for utilizing a laboratory that meets state and
federal requirements, including the Federal Bureau of
Investigation Quality Assurance Standards, and that is
accredited by an organization approved by the National DNA Index
System Procedures Board for the processing and analysis of
forensic identification samples and testimony related to the
analysis in order to expedite the analysis of crime scene
samples in order to expedite and proceed with a pending criminal
action or investigation within that county.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
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Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
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decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, the U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
-----------------------
<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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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, 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.
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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.
Proposition 69 enacted in 2004 created two different
local funds. Government Code 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 has its own crime lab for their
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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.
2. Expanded Use for Additional Funds Derived From DNA Penalty
Assessment
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.
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Proposition 69 also provides how accredited laboratories are
authorized to analyze crime scene samples. Proposition 69
included an assessment of one dollar for every ten dollars on
every fine, penalty or forfeiture. This fee was intended to pay
for the testing of the additional DNA samples collected because
of the Proposition. The money collected was to be placed in the
DNA Identification Fund.
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
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
qualified laboratories for the testing of DNA evidence, if the
county board of supervisors authorizes such reimbursement by a
resolution.
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