BILL ANALYSIS �
AB 1697
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Date of Hearing: April 9, 2014
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
AB 1697 (Donnelly) - As Amended: March 20, 2014
Policy Committee: Public
SafetyVote: 7-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
As proposed to be amended, this bill specifies that for purposes
of the DNA and Forensic Identification Database and Data Bank
Act (Act), nothing in this chapter shall be construed as
permitting the state's DNA database or data bank to be used as a
source of genetic material for testing, research, or experiments
by any person, agency, or entity seeking to find a causal link
between genetics and behavior or health.
FISCAL EFFECT
Negligible cost, if any, as this limitation is consistent with
the Data Bank Act and Proposition 69.
COMMENTS
1)Rationale . The author's intent is to ensure DNA data is not
used for invasive research purposes. According to the author,
"As the cost of DNA sequencing decreases and the ability to
process large amounts of data increases, the state will have
unprecedented ability to link genetics with criminal activity.
While this may sound like the movie Minority Report, it is no
longer science fiction. Your most private information about
who you are isn't even safe from the government anymore."
2)Current Law .
a) Makes DOJ responsible for the state's DNA and Forensic
Identification Database and Data Bank Program, and
authorizes DOJ to perform DNA analysis, other forensic
identification analysis, and examination of palm prints
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pursuant to the Act only for identification purposes.
b) Requires anyone arrested, convicted, adjudicated or
charged with a felony, or required to register as a sex
offender, to provide buccal swab samples, right
thumbprints, a full palm print, and any blood specimens or
other samples required for law enforcement identification.
(Proposition 69 in 2004 required that DNA collection be
expanded to include adults and juveniles convicted of any
felony offense; adults and juveniles convicted of any sex
offense; adults arrested for or charged with felony sex
offenses, murder, voluntary manslaughter, or the attempt of
these crimes. Starting in 2009, Proposition 69 required DNA
collection of all adults arrested for or charged with (as
opposed to only those convicted of) any felony offense.
Moreover, in addition to the biological samples already
required to be provided under then-existing law,
Proposition 69 mandated that those individuals specified
above also provide buccal swab samples, right thumbprints,
and a full palm print impression of each hand.)
c) Makes it an alternate misdemeanor/felony to knowingly
use a specimen, sample, or DNA profile collected pursuant
to the Act for purposes other than criminal identification
or exclusion, or for the identification of missing persons.
If the violation is for financial gain, the fine is three
times the financial gain, or $10,000, whichever is greater.
d) Specifies it is not a violation to use anonymous records
or criminal history information obtained pursuant to the
Act for training, research, statistical analysis of
populations, quality assurance, or quality control.
3)DOJ Indicates this bill is consistent with current law,
regulation, and practice.
DOJ notes that state and federal law prohibit all but a very
limited analysis of the buccal swab samples collected from
qualifying felony offenders. Samples can be analyzed using
only specifically-designated identification loci situated
between genes, and hence do not code for any known
characteristic across populations. The identification loci
used to test database samples have been approved by state and
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federal regulatory boards and by Congress. Any new loci added
to CODIS must comply with existing statutory and regulatory
requirements, and may not be diagnostic or predictive of
medical conditions or disease.
Moreover, DOJ references U.S. Supreme Court, and state and
federal court cases that have found DNA database sample
collection constitutional. Integral to the constitutional
analysis are the use and disclosure restrictions mandated by
CODIS and California law. (See Maryland v. King (2013) 133 S.
Ct. 1958, 1966-1968, 1979-1980, People v. Robinson (2010) 47
Cal.4th 1104, United States v. Kincade (9th Cir. 2004) 379
F.3d 813 (en banc); Alfaro v. Terhune (2002) 98 Cal. App.4th
492, 506-510.) These cases recognize that if DNA database
samples were tested for specific traits or diseases or
behaviors, the constitutional equation would be different.
According to DOJ, if the DNA Lab conducted research or used
its database in the way the bill's author apparently fears,
the courts would quickly shut down lab operations under the
Fourth Amendment.
4)Is this Bill Necessary? In an amicus brief filed by 49 states,
in which California took the lead, supporting the state of
Maryland in Maryland v King (2013), in which the U.S. Supreme
Court examined the constitutionality of law enforcement
collecting and analyzing cheek swab DNA of arrestees of
serious offenses, the brief concludes by stating that
"speculation is not part of a Fourth Amendment analysis" and
cites an earlier case (Kincade) in which the defense argued
that because DNA samples "conceivably could be mined for more
private information or otherwise be misused in the future, "
the possible future invasion of personal privacy outweighed
the government's interests. The Ninth Circuit Court rejected
that argument and wrote:
"[B]eyond the fact that the DNA Act itself provides
protections against such misuse, our job is limited to
resolving the constitutionality of the program before us, as
it is designed and as it has been implemented. In our system
of government, courts base decisions not on dramatic Hollywood
fantasies, but on concretely particularized facts developed in
the cauldron of the adversary process and reduced to an
assessable record. If?some future program permits the parade
of horribles the DNA Act's opponents fear . . .we have every
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confidence that courts will respond appropriately." (Kincade,
379 F.3d at 837-838.)
In King, the U.S. Supreme Court held for Maryland.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081