BILL ANALYSIS �
AB 855
Page 1
Date of Hearing: April 26, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Ammiano, Tom, Chair
AB 855 (Ma) - As Amended: March 21, 2011
SUMMARY : Allows funds remaining in a local DNA Identification
Fund to be expended by a local law enforcement agency for the
costs of using an authorized, independent laboratory, other than
the DOJ, to analyze and expedite the testing of DNA samples.
Specifically, this bill :
1)Provides reimbursements to 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, as
specified.
2)Requires authorization by a resolution of the county board of
supervisors
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
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.
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�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)]:
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.
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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 the Department of Justice's (DOJ) 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,
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).]
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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
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 bill. �California Government Code Section
76104.6(d).]
10)States that upon approval of the DNA Fingerprint, Unsolved
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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
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
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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 Department of Justice 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 Department of Justice's 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,
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
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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, "AB 855 will
allow law enforcement and district attorneys to access the
services of independent crime laboratories for the purpose of
expediting the testing and analysis of DNA samples, primarily
rape kits.
"Two years ago in Yuba County, biological samples from a rape
case involving a female AFB airperson, were submitted to the
Department of Justice for processing. The sample was
submitted January 25th, 2008, but the DNA analysis was not
returned until February 4th, 2009 - over a year later. During
this period, the victim's deployment to Afghanistan/Iraq was
delayed. If Yuba County had been able to contract independent
laboratories for the analysis, the results would have been
expedited in as little as two weeks.
"In 2004, Proposition 69 was passed, increasing various fines to
assist with the funding for the DNA Identification Fund for
DNA labs, both state and local. Consequentially, the backlogs
for DNA testing have been eliminated in several counties due
to an increase in funds in their DNA Identification Fund
accounts.
"However, the backlog of DNA remains an issue for California as
it hinders the successful removal of criminals from the
streets due to a vast amount of pending cases. In 2008, the
Los Angeles Police Department noted 6,132 rape kits containing
various DNA materials gathered from the bodies of victims and
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from the crime scenes. This is evidence that would likely
assist with the proper identification of criminals. At the
end of February 2011, the California Department of Justice
reported a backlog of 35,409 DNA samples. But on a larger
scale, 400,000 untested rape kits remain in police storage
throughout the United States.
"Some counties right now may have to wait well over a year for a
DNA result; however, a private lab can produce the results for
that same case in two weeks. The victims of these crimes
deserve fast, as well as efficient, results so their case can
be heard and they can begin to move forward with their lives.
"AB 855 explicitly allows counties to use remaining funds from
the state's DNA Identification Fund to compensate law
enforcement and district attorneys in order to use independent
laboratories to accelerate the analysis of samples, in this
case rape kits.
"This bill offers the unique opportunity for local law
enforcement agencies to exponentially speed up the process at
which these DNA kits are currently being processed, without
compromising the results.
"The bill does not impact funding distributed to the State lab
under the program. AB 855 simply allows for remaining dollars
otherwise unusable at the local level."
2)Governor's Veto Message : AB 2009 (Logue), of the 2009-10
Legislative Session, was identical to this bill and vetoed.
Then Governor Arnold Schwarzenegger stated in his veto
message:
"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."
3)What the Excess Funds Currently Repay : Under current law,
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funds remaining in a 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.
4)Background of Proposition 69 Generally : Proposition 69 was
passed in November 2004 and made substantial changes to 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
California crime laboratories. 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 Fourth and Fourteenth 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
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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
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
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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."
The court, therefore, decided this case should not be judicially
reviewed at this present time.
5)Related Legislation : AB 434 (Logue) allows 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. AB 434 limits the reimbursements to public labs to
address the veto message of 2010's AB 2009.
6)Prior Legislation : AB 2009 (Logue), of the 2009-10
Legislative Session, would have permitted 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 DOJ, to expedite the
analysis of samples. AB 2009 was vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
Crime Victims United of California
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744