BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 434 (Logue)
As Amended March 29, 2011
Hearing date: July 5, 2011
Government Code
MK:mc
COUNTY PENALTIES:
FORENSIC LABORATORIES
HISTORY
Source: Yuba County Board of Supervisors, on behalf of Pat
McGrath, Yuba County District Attorney
Prior Legislation: AB 2009 (Logue) - 2010, vetoed
Support: California Association of Crime Lab Directors; San
Bernardino County Sheriff's Department; California
State Association of Counties; Regional Council of
Rural Counties; Urban Counties Caucus; California State
Sheriffs' Association
Opposition:None known
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
SHOULD FUNDS REMAINING IN A COUNTY'S DNA IDENTIFICATION FUND BE
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PERMITTED TO BE USED TO REIMBURSE A REGIONAL STATE CRIME LABORATORY
FOR COSTS ASSOCIATED WITH THE ANALYSIS AND COMPARISON OF CRIME SCENE
DNA WITH FORENSIC IDENTIFICATION SAMPLES?
PURPOSE
The purpose of this bill is to allow funds remaining in a
county's DNA Identification Fund
to reimburse a regional state crime laboratory for costs
associated with the analysis and comparison of crime scene DNA
with forensic identification samples.
Existing law specifies that the Department of Justice (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, 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
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inform the DOJ Laboratory within two years whether the person
remains a suspect in a criminal investigation and 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 � 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
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or parole for any felony or misdemeanor offense, as specified,
shall provide buccal swab samples under specified conditions.
(Penal Code � 296.1(a)(3).)
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:
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any restitution fine;
specified penalties authorized under the Penal Code;
specified parking offenses; and
the state surcharge authorized by the Penal Code.
(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
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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. (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
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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 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
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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
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 if authorized by a resolution of the
county board of supervisors, funds remaining in the county's
DNA Identification Fund after distribution under existing law,
may also be used either independently or in combination with
remaining funds from another country, to provide supplemental
funding to a qualified local or regional state forensic
laboratory for expenditures and administrative costs made or
incurred in connection with the processing, analysis, and
comparison of DNA crime scene samples and forensic
identification samples, and testimony related to that analysis.
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This bill provides that the above shall only apply to those
counties that do not have a local public law enforcement
laboratory provided the transfer of funds will not interfere
with the transfer to law enforcement for the collection of
samples.
This bill proves that any supplemental funding provided by the
above shall not be used to supplant funds already allocated to a
qualified local or regional state forensic laboratory by the
state's DNA Identification Fund.
This bill defines a qualified local or regional state forensic
laboratory as a Department of Justice regional forensic
laboratory or a local law enforcement agency forensic laboratory
that meets state and federal requirement for contributing DNA
profiles for inclusion in California's DNA databank, including
the FBI Quality Assurance Standards and accreditation
requirements, and shall be accredited by an organization
approved by the National DNA Index System (NDIS) Procedures
Board.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
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court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Proposition 69, enacted in 2004, created a fund to
help offset the costs incurred by regulations on the
collection and processing of DNA samples. Prop 69
stipulates that for every $10 of criminal fines
collected an additional $1 should be levied; these
revenues are used at the state and local level to help
pay for the collection and processing of DNA samples.
A portion of the revenue is earmarked for countries to
reimburse them for the costs related to DNA
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collection, analysis, tracking and processing.
Countries have the option to set up their own DNA lab
using Prop 69 money or to contract with the state
Department of Justice on a case by case basis. The
latter option is selected by counties that do not have
enough Prop 69 funds to cover the expenses of
operating their own lab. However, the DOJ suffers
from a large backlog and counties sometimes wait over
a year for DNA test results. Public Safety depends on
the speedy return of DNA test results, as many crimes
go unsolved or uncharged due to lack of DNA evidence.
AB 434 would allow counties to get around the
backlogged DOJ queue by securing their own DNA lab
technician.
This bill was drafted as a response to the veto of AB
2009 (Logue, 2010) and is the result of negotiations
between the sponsor and representatives of the
Department of Justice and the California Association
of Crime Lab Directors. This will enable counties that
do not have their own DNA crime labs to get DNA tests
done in a shorter time frame than under the current
process of contracting with the DOJ, aiding in solving
of crimes and the prosecution of violent criminals.
2. Expanded Use for Additional Funds Derived From DNA Penalty
Assessment
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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. 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 would allow funds remaining in a county's DNA
Identification Fund to reimburse a regional state crime
laboratory for costs associated with the analysis and comparison
of crime scene DNA with forensic identification samples.
3. AB 2009 (Logue) Veto Message
AB 2009 (Logue) which was vetoed in 2010 allowed the funds to be
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used for private labs, as well as the regional state labs that
may be reimbursed in this bill. The money to the private labs
was the focus of the Governor's veto which stated:
This measure would allow counties to use funds from
their DNA Identification funds to pay for private
laboratories to process DNA samples.
While this measure is well-intentioned, leftover
public funds would be better used to increase local
and state capacity to test DNA rather than diverting
these funds to private laboratories. Moreover, as
noted by the California Association of Crime
Laboratory Directors, this measure could create
additional costs for counties and preclude DNA from
being submitted to the national Combined DNA Index
System.
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