California Legislature—2013–14 Regular Session

Assembly Bill No. 1697

Introduced by Assembly Member Donnelly

February 13, 2014

An act to amend Sections 295.1, 299.5, and 299.6 of, and to add Section 295.2 to, the Penal Code, relating to forensic identification.

LEGISLATIVE COUNSEL’S DIGEST

AB 1697, as introduced, Donnelly. Forensic identification: informed consent.

Existing law, as amended by the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, Proposition 69, approved by the voters at the November 2, 2004, general election, subjects certain offenders to the collection of buccal swab samples, right thumbprints, a full palm print impression of each hand, and blood specimens or other biological samples for law enforcement identification analysis. The DNA Laboratory of the Department of Justice (DOJ) is required to serve as a repository for blood specimens, buccal swabs, and other biological samples collected, and is required to analyze specimens and samples, and to store, compile, correlate, compare, maintain, and use deoxyribonucleic acid (DNA) and forensic identification profiles and records related to several functions, including, but not limited to, using anonymous DNA records for training, research, statistical analysis of populations, quality assurance, or quality control. Proposition 69 amended these provisions to include buccal swabs as samples and using anonymous DNA records for quality assurance.

This bill would prohibit the DOJ from using any DNA specimen or sample obtained pursuant to these provisions, or any information, profile, or record derived from that specimen or sample, for any purpose related to research or statistical analysis of populations, except as necessary for quality assurance or quality control, without complying with the requirements of the Protection of Human Subjects in Medical Experimentation Act. The prohibition would apply regardless of whether the DOJ anonymizes DNA records prior to conducting research or statistical analysis of populations, and would not apply to DNA specimens, samples, profiles, or records obtained prior to January 1, 2015. The bill would also make conforming changes.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) In June 2013, the United States Supreme Court upheld the
authority of government to collect and analyze deoxyribonucleic
acid (DNA) from individuals arrested for a crime, regardless of
whether they are ultimately convicted. In his dissent, Justice
Antonin Scalia concluded that, “as an entirely predictable
consequence of today’s decision, your DNA can be taken and
entered into a national DNA database if you are ever arrested,
rightly or wrongly, and for whatever reason . . . . Today’s judgment
will, to be sure, have the beneficial effect of solving more crimes;
then again, so would the taking of DNA samples from anyone who
flies on an airplane (surely the Transportation Security
Administration needs to know the ‘identity’ of the flying public),
applies for a driver’s license, or attends a public school. Perhaps
the construction of such a genetic panopticon is wise. But I doubt
that the proud men who wrote the charter of our liberties would
have been so eager to open their mouths for royal inspection”
(Maryland v. King (2013) 133 S.Ct. 1958, 1989).

(b) Also in June 2013, the United States Court of Appeals for
the Ninth Circuit upheld the authority of government to retain
DNA samples indefinitely, long after standard forensic information
has been extracted and entered into a database for criminal
identification purposes. In his dissent, Justice Stephen Reinhardt
noted that “The government has statutory authority to use its
indefinite access to stored blood samples in any capacity justified
by ‘law enforcement identification purposes.’ [citation omitted]
However, ‘law enforcement identification purposes’ have not been
specifically defined or circumscribed by Congress or the courts.
Whatever limitation envisioned by restricting use of blood samples
to only those used for ‘law enforcement identification purposes,’
it does not prevent the reanalysis or testing of stored blood samples
for certain genetic traits . . . . ‘Law enforcement identification
purposes’ could include retesting for certain behavior traits. For
example, behavior geneticists have been researching a purported
‘crime gene’ that could lead to the use of genetic material for
‘preventive detentions or other means of social control for those
identified as genetically predisposed to criminality’” (U.S. v.
Kriesel (9th Cir. 2013) 720 F.3d 1137, 1160).

(c) The California Department of Justice (DOJ) maintains
indefinite access to more than 1.8 million DNA samples. These
samples contain an individual’s entire genome, and could be tested
to reveal traits related to ethnicity, health, and behavior. While the
DOJ may only perform DNA analysis “for identification purposes,”
this term is not defined, and could include research into the link
between genes and criminal behavior. Existing law authorizes the
DOJ to use its samples for research purposes, and its vast collection
of DNA samples provides the means to study how genetic profiles
could help preemptively identify individuals predisposed to
criminal behavior. This emerging field is known as “behavioral
genomics.”

(d) Recent research indicates that more than one-half of the
variance in antisocial behavior can be attributed to genetic factors
(C.J. Ferguson, Genetic Contributions to Antisocial Personality
and Behavior: a Meta-analytic Review from an Evolutionary
Prospective, Journal of Social Psychology (March-April 2010,
Volume 150, Issue 2, pp. 160-180)). For example, researchers have
demonstrated that individuals possessing one particular gene
variant are statistically more likely to join a gang, and also more
likely to use a weapon in a fight (Kevin M. Beaver, et al.,
Monoamine Oxidase A Genotype Is Associated with Gang
Membership and Weapon Use, Comprehensive Psychiatry (March
2010, Volume 51, Issue 2, pp. 130-134)). The ability of this
research to identify likely criminals and potential criminals will
increase dramatically as researchers gain the means to track the
interaction of thousands of gene variants across millions of
samples, and correlate these results with known criminal behaviors.
The Department of Justice DNA repository offers that capability.

(e) The ability to perform this analysis is increasingly within
reach. According to the National Human Genome Research
Institute, the cost of whole-genome sequencing has decreased more
than 9,000 fold over the past 10 years.

(f) In response to Nazi human experimentation performed during
the Holocaust, the Nuremberg Military Tribunal’s verdict in the
“Doctor’s Trial” incorporated a set of research ethics for legitimate
human experimentation, known as the “Nuremberg Code.” These
requirements, such as voluntary informed consent, are codified in
California law as the Protection of Human Subjects in Medical
Experimentation Act (Chapter 1.3 (commencing with Section
24170) of Division 20 of the Health and Safety Code). It is the
intent of the Legislature, in enacting this act, to ensure that the
DOJ provides these basic protections to all human subjects in
behavioral genomics research studies, regardless of whether the
DNA sample itself is obtained voluntarily or involuntarily.

(g) It is the intent of the Legislature that nothing in this act shall
limit, or otherwise affect, the forensic activities of the DOJ
unrelated to research, or the use of research for quality control or
quality assurance purposes.

(h) This act does not amend, the DNA Fingerprint, Unsolved
Crime and Innocence Protection Act adopted as Proposition 69 at
the November 2, 2004, statewide general election. Statutory
authority for the DOJ to perform research using collected DNA
samples predates the adoption of Proposition 69. Pursuant to
Section 9605 of the Government Code, “[w]here a section or part
of a statute is amended, it is not to be considered as having been
repealed and reenacted in the amended form. The portions which
are not altered are to be considered as having been the law from
the time when they were enacted; the new provisions are to be
considered as having been enacted at the time of the amendment.
...” Accordingly, the Legislature remains free to address the issue
of research, a matter that Proposition 69 itself does not “specifically
authorize or prohibit” (People v. Kelly (2010) 47 Cal.4th 1008,
1025-1026; see also People v. Cooper (2002) 27 Cal.4th 38, 44,
and County of San Diego v. San Diego NORML (2008) 165
Cal.App.4th 798, 830).

SEC. 2.  

Section 295.1 of the Penal Code is amended to read:

295.1.  

(a) The Department of Justice shall perform DNA
analysis and other forensic identification analysis pursuant to this
chapter only for identification purposes.

(b) The Department of Justice Bureau of Criminal Identification
and Information shall perform examinations of palm prints pursuant
to this chapter only for identification purposes.

(c) The DNA Laboratory of the Department of Justice shall
serve as a repository for blood specimens and buccal swab and
other biological samples collected, and shall analyze specimens
and samples, and store, compile, correlate, compare, maintain, and
use DNA and forensic identification profiles and records related
to the following:

(1) Forensic casework and forensic unknowns.

(2) Known and evidentiary specimens and samples from crime
scenes or criminal investigations.

(3) Missing or unidentified persons.

(4) Persons required to provide specimens, samples, and print
impressions under this chapter.

(5) Legally obtained samples.

(6)  begin delete Anonymous end delete begin insert Subject to the requirements of Section 295.2,
anonymous end insert DNA records used for training, research, statistical
analysis of populations, quality assurance, or quality control.

(d) The computerized data bank and database of the DNA
Laboratory of the Department of Justice shall include files as
necessary to implement this chapter.

(e) Nothing in this section shall be construed as requiring the
Department of Justice to provide specimens or samples for quality
control or other purposes to those who request specimens or
samples.

(f) Submission of samples, specimens, or profiles for the state
DNA Database and Data Bank Program shall include information
as required by the Department of Justice for ensuring search
capabilities and compliance with National DNA Index System
(NDIS) standards.

SEC. 3.  

Section 295.2 is added to the Penal Code, to read:

295.2.  

(a) The Department of Justice shall not use any DNA
specimen or sample obtained pursuant to this chapter, or any
information, profile, or record derived from that specimen or
sample, for any purpose related to research or statistical analysis
of populations, except as necessary for quality assurance or quality
control, without complying with the requirements of the Protection
of Human Subjects in Medical Experimentation Act (Chapter 1.3
(commencing with Section 24170) of Division 20 of the Health
and Safety Code). This section applies regardless of whether the
Department of Justice anonymizes DNA records prior to
conducting research or statistical analysis of populations.

(b) This section does not apply to DNA specimens, samples,
profiles, or records obtained prior to January 1, 2015.

SEC. 4.  

Section 299.5 of the Penal Code is amended to read:

299.5.  

(a) All DNA and forensic identification profiles and
other identification information retained by the Department of
Justice pursuant to this chapter are exempt from any law requiring
disclosure of information to the public and shall be confidential
except as otherwise provided in this chapter.

(b) All evidence and forensic samples containing biological
material retained by the Department of Justice DNA Laboratory
or other state law enforcement agency are exempt from any law
requiring disclosure of information to the public or the return of
biological specimens, samples, or print impressions.

(c) Non-DNA forensic identification information may be filed
with the offender’s file maintained by the Sex Registration Unit
of the Department of Justice or in other computerized data bank
or database systems maintained by the Department of Justice.

(d) The DNA and other forensic identification information
retained by the Department of Justice pursuant to this chapter shall
not be included in the state summary criminal history information.
However, nothing in this chapter precludes law enforcement
personnel from entering into a person’s criminal history
information or offender file maintained by the Department of
Justice, the fact that the specimens, samples, and print impressions
required by this chapter have or have not been collected from that
person.

(e) The fact that the blood specimens, saliva or buccal swab
samples, and print impressions required by this chapter have been
received by the DNA Laboratory of the Department of Justice shall
be included in the state summary criminal history information as
soon as administratively practicable.

The full palm prints of each hand shall be filed and maintained
by the Automated Latent Print Section of the Bureau of Criminal
Identification and Information of the Department of Justice, and
may be included in the state summary criminal history information.

(f) DNA samples and DNA profiles and other forensic
identification information shall be released only to law enforcement
agencies, including, but not limited to, parole officers of the
Department of Corrections, hearing officers of the parole authority,
probation officers, the Attorney General’s office, district attorneys’
offices, and prosecuting city attorneys’ offices, unless otherwise
specifically authorized by this chapter. Dissemination of DNA
specimens, samples, and DNA profiles and other forensic
identification information to law enforcement agencies and district
attorneys’ offices outside this state shall be performed in
conformity with the provisions of this chapter.

(g) A defendant’s DNA and other forensic identification
information developed pursuant to this chapter shall be available
to his or her defense counsel upon court order made pursuant to
Chapter 10 (commencing with Section 1054) of Title 6 of Part 2.

(h) Except as provided in subdivision (g) and in order to protect
the confidentiality and privacy of database and data bank
information, the Department of Justice and local public DNA
laboratories shall not otherwise be compelled in a criminal or civil
proceeding to provide any DNA profile or forensic identification
database or data bank information or its computer database program
software or structures to any person or party seeking begin delete such end delete begin insert those end insert
records or information whether by subpoena or discovery, or other
procedural device or inquiry.

(i) (1) (A) Any person who knowingly uses an offender
specimen, sample, or DNA profile collected pursuant to this chapter
for other than criminal identification or exclusion purposes, or for
other than the identification of missing persons, or who knowingly
discloses DNA or other forensic identification information
developed pursuant to this section to an unauthorized individual
or agency, for other than criminal identification or exclusion
purposes, or for the identification of missing persons, in violation
of this chapter, shall be punished by imprisonment in a county jail
not exceeding one year or by imprisonment in the state prison for
16 months, or two or three years.

(B) Any person who, for the purpose of financial gain,
knowingly uses a specimen, sample, or DNA profile collected
pursuant to this chapter for other than criminal identification or
exclusion purposes or for the identification of missing persons or
who, for the purpose of financial gain, knowingly discloses DNA
or other forensic identification information developed pursuant to
this section to an unauthorized individual or agency, for other than
criminal identification or exclusion purposes or for other than the
identification of missing persons, in violation of this chapter, shall,
in addition to the penalty provided in subparagraph (A), be
punished by a criminal fine in an amount three times that of any
financial gain received or ten thousand dollars ($10,000),
whichever is greater.

(2) (A) If any employee of the Department of Justice knowingly
uses a specimen, sample, or DNA profile collected pursuant to this
chapter for other than criminal identification or exclusion purposes,
or knowingly discloses DNA or other forensic identification
information developed pursuant to this section to an unauthorized
individual or agency, for other than criminal identification or
exclusion purposes or for other than the identification of missing
persons, in violation of this chapter, the department shall be liable
in civil damages to the donor of the DNA identification information
in the amount of five thousand dollars ($5,000) for each violation,
plus attorney’s fees and costs. In the event of multiple disclosures,
the total damages available to the donor of the DNA is limited to
fifty thousand dollars ($50,000) plus attorney’s fees and costs.

(B) (i) Notwithstanding any other law, this shall be the sole
and exclusive remedy against the Department of Justice and its
employees available to the donor of the DNA.

(ii) The Department of Justice employee disclosing DNA
identification information in violation of this chapter shall be
absolutely immune from civil liability under this or any other law.

(3) It is not a violation of this section for a law enforcement
agency in its discretion to publicly disclose the fact of a DNA
profile match, or the name of the person identified by the DNA
match when this match is the basis of law enforcement’s
investigation, arrest, or prosecution of a particular person, or the
identification of a missing or abducted person.

(j) It is not a violation of this chapter to furnish DNA or other
forensic identification information of the defendant to his or her
defense counsel for criminal defense purposes in compliance with
discovery.

(k) It is not a violation of this section for law enforcement to
release DNA and other forensic identification information
developed pursuant to this chapter to a jury or grand jury, or in a
document filed with a court or administrative agency, or as part
of a judicial or administrative proceeding, or for this information
to become part of the public transcript or record of proceedings
when, in the discretion of law enforcement, disclosure is necessary
because the DNA information pertains to the basis for law
enforcement’s identification, arrest, investigation, prosecution, or
exclusion of a particular person related to the case.

(l) It is not a violation of this section to include information
obtained from a file in a transcript or record of a judicial
proceeding, or in any other public record when the inclusion of
the information in the public record is authorized by a court, statute,
or decisional law.

(m)  begin delete It end delete begin insert Except as specified in Section 295.2, it end insert is not a violation
of this section for the DNA Laboratory of the Department of
Justice, or an organization retained as an agent of the Department
of Justice, or a local public laboratory to use anonymous records
or criminal history information obtained pursuant to this chapter
for training, research, statistical analysis of populations, or quality
assurance or quality control.

(n) The Department of Justice shall make public the
methodology and procedures to be used in its DNA program prior
to the commencement of DNA testing in its laboratories. The
Department of Justice shall review and consider on an ongoing
basis the findings and results of any peer review and validation
studies submitted to the department by members of the relevant
scientific community experienced in the use of DNA technology.
This material shall be available to criminal defense counsel upon
court order made pursuant to Chapter 10 (commencing with Section
1054) of Title 6 of Part 2.

(o) In order to maintain the computer system security of the
Department of Justice DNA and Forensic Identification Database
and Data Bank Program, the computer software and database
structures used by the DNA Laboratory of the Department of
Justice to implement this chapter are confidential.

SEC. 5.  

Section 299.6 of the Penal Code is amended to read:

299.6.  

(a) Nothing in this chapter shall prohibit the Department
of Justice, in its sole discretion, from the sharing or disseminating
of population database or data bank information, DNA profile or
forensic identification database or data bank information, analytical
data and results generated for forensic identification database and
data bank purposes, or protocol and forensic DNA analysis methods
and quality assurance or quality control procedures with any of
the following:

(1) Federal, state, or local law enforcement agencies.

(2) Crime laboratories, whether public or private, that serve
federal, state, and local law enforcement agencies that have been
approved by the Department of Justice.

(3) The attorney general’s office of any state.

(4) Any state or federally authorized auditing agent or board
that inspects or reviews the work of the Department of Justice
DNA Laboratory for the purpose of ensuring that the laboratory
meets ASCLD/LAB and FBI standards for accreditation and quality
assurance standards necessary under this chapter and for the state’s
participation in CODIS and other national or international
crime-solving networks.

(5)  begin delete Any end delete begin insert Subject to the requirements of Section 295.2, any end insert third
party that the Department of Justice deems necessary to assist the
department’s crime laboratory with statistical analyses of
population databases, or the analyses of forensic protocol, research
methods, or quality control procedures, or to assist in the recovery
or identification of human remains for humanitarian purposes,
including identification of missing persons.

(b) The population databases and data banks of the DNA
Laboratory of the Department of Justice may be made available
to and searched by the FBI and any other agency participating in
the FBI’s CODIS System or any other national or international
law enforcement database or data bank system.

(c) The Department of Justice may provide portions of biological
samples including blood specimens, saliva samples, and buccal
swab samples collected pursuant to this chapter to local public law
enforcement DNA laboratories for identification purposes provided
that the privacy provisions of this section are followed by the local
public law enforcement laboratory and if each of the following
conditions is met:

(1) The procedures used by the local public DNA laboratory
for the handling of specimens and samples and the disclosure of
results are the same as those established by the Department of
Justice pursuant to Sections 297, 298, and 299.5.

(2) The methodologies and procedures used by the local public
DNA laboratory for DNA or forensic identification analysis are
compatible with those used by the Department of Justice, or
otherwise are determined by the Department of Justice to be valid
and appropriate for identification purposes.

(3) Only tests of value to law enforcement for identification
purposes are performed and a copy of the results of the analysis
are sent to the Department of Justice.

(4) All provisions of this section concerning privacy and security
are followed.

(5) The local public law enforcement DNA laboratory assumes
all costs of securing the specimens and samples and provides
appropriate tubes, labels, and materials necessary to secure the
specimens and samples.

(d) Any local DNA laboratory that produces DNA profiles of
known reference samples for inclusion within the permanent files
of the state’s DNA Data Bank program shall follow the policies
of the DNA Laboratory of the Department of Justice.