BILL NUMBER: AB 1332 CHAPTERED
BILL TEXT
CHAPTER 696
FILED WITH SECRETARY OF STATE SEPTEMBER 22, 1998
APPROVED BY GOVERNOR SEPTEMBER 21, 1998
PASSED THE SENATE AUGUST 31, 1998
PASSED THE ASSEMBLY AUGUST 31, 1998
AMENDED IN SENATE JULY 28, 1998
AMENDED IN SENATE JULY 6, 1998
AMENDED IN SENATE JUNE 24, 1998
AMENDED IN SENATE JULY 10, 1997
AMENDED IN ASSEMBLY JUNE 4, 1997
AMENDED IN ASSEMBLY MAY 1, 1997
INTRODUCED BY Assembly Member Murray
(Coauthor: Senator Thompson)
FEBRUARY 28, 1997
An act to add Chapter 6 (commencing with Section 295) to Title 9
of Part 1 of, and to repeal Section 290.2 of, the Penal Code,
relating to criminal identification.
LEGISLATIVE COUNSEL'S DIGEST
AB 1332, Murray. DNA and Forensic Identification Data Base and
Data Bank Act of 1998.
Existing law requires any person who is required to register as a
felony sex offender, or who is convicted of murder, or who is
convicted of a felony offense of assault or battery, as specified,
and who is committed to the state prison, a county jail, or any Youth
Authority institution, or is granted probation, or is released from
a state hospital where he or she was committed as a mentally
disordered sex offender, to provide blood specimens and a saliva
sample for analysis of deoxyribonucleic acid (DNA) and other genetic
typing analysis at the Department of Justice's DNA laboratory, and to
provide a right thumbprint and a full palm print impression of each
hand.
This bill would repeal this provision and provide instead that any
person who is required to register as a sex offender for committing
any specified felony offense, or who is convicted of, or pleads
guilty or no contest to, specified offenses, including, but not
limited to, certain felony sex offenses, murder or attempted murder,
voluntary manslaughter, felony spousal abuse, a felony offense of
assault or battery, or kidnapping, or is found not guilty by reason
of insanity of any of these crimes, or is convicted of murder or
felony assault or battery, shall provide 2 specimens of blood, a
saliva sample, a right thumbprint, and a full palm print impression
of each hand for law enforcement identification analysis by the
Department of Justice. Because the bill would impose increased duties
on local criminal justice systems that are equivalent to those
imposed by the establishment of a new crime, the bill would create a
state-mandated local program.
The bill would require all laboratories, including the Department
of Justice DNA laboratories, contributing DNA profiles for inclusion
in California's DNA Data Bank to be accredited by the American
Society of Crime Laboratory Directors Laboratory Accreditation Board
(ASCLD/LAB). Additionally, the bill would require each laboratory to
submit to the Department of Justice for review the annual report
required by the ASCLD/LAB which documents the laboratory's adherence
to ASCLD/LAB standards.
The bill would require the Department of Justice to provide the
supplies and materials for collection of specimens, samples, and
print impressions, and would provide that counties shall be
reimbursed for the costs of obtaining these specimens, samples, and
print impressions, as specified. The bill would provide that any
person who refuses to give any or all of the following, blood
specimens, saliva samples, or thumb or palm print impressions, once
he or she has received written notice that he or she is required to
provide specimens, samples, and print impressions, is guilty of a
misdemeanor. The bill also would provide that any person who
knowingly discloses DNA or other forensic identification information
to an unauthorized individual or agency, or for other than
identification purposes or purposes of parole or probation
supervision, is guilty of a misdemeanor. By creating new crimes, the
bill would impose a state-mandated local program.
The bill would require the Department of Justice to catalog all
requests for statistical or research information obtained from the
DNA data bank. Commencing January 1, 2000, the bill would require
the department to submit an annual letter to the Legislature
including specified information with respect to each request for
information obtained from the DNA data bank.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 290.2 of the Penal Code is repealed.
SEC. 2. Chapter 6 (commencing with Section 295) is added to Title
9 of Part 1 of the Penal Code, to read:
CHAPTER 6. DNA AND FORENSIC IDENTIFICATION DATA BASE AND DATA
BANK ACT OF 1998
Article 1. Purpose and Administration
295. (a) This chapter shall be known and may be cited as the DNA
and Forensic Identification Data Base and Data Bank Act of 1998.
(b) The Legislature finds and declares all of the following:
(1) Deoxyribonucleic acid (DNA) and forensic identification
analysis is a useful law enforcement tool for identifying and
prosecuting sexual and violent offenders.
(2) It is the intent of the Legislature, in order to further the
purposes of this chapter, to require DNA and forensic identification
data bank samples for the felony offenses described in subdivision
(a) of Section 296.
(3) It is necessary to enact this act defining and governing the
state's DNA and forensic identification data base and data bank in
order to clarify existing law and to enable the state's DNA and
forensic identification data base and data bank program to become a
more effective law enforcement tool.
(c) The purpose of the DNA and forensic identification data bank
is to assist federal, state, and local criminal justice and law
enforcement agencies within and outside California in the expeditious
detection and prosecution of individuals responsible for sex
offenses and other violent crimes, the exclusion of suspects who are
being investigated for these crimes, and the identification of
missing and unidentified persons, particularly abducted children.
(d) The Department of Justice, through its DNA Laboratory, shall
be responsible for the management and administration of the state's
DNA data base and data bank identification program and for liaison
with the Federal Bureau of Investigation (FBI) regarding the state's
participation in a national DNA data base such as the FBI's Combined
DNA Index System (CODIS) that allows the storage and exchange of DNA
records submitted by state and local forensic DNA laboratories
nationwide.
(e) The Department of Justice shall be responsible for
implementing this chapter. The Department of Justice DNA Laboratory,
the Department of Corrections, and the Department of the Youth
Authority shall adopt policies and enact regulations for the
implementation of this chapter, as necessary, to give effect to the
intent and purpose of this chapter, and to ensure that data bank
blood specimens, saliva samples, and thumb and palm print impressions
are collected from qualifying offenders in a timely manner, as soon
as possible after conviction, or a plea or finding of guilty, no
contest, or not guilty by reason of insanity, or upon the disposition
rendered in the case of a juvenile who is adjudged a ward of the
court under Section 602 of the Welfare and Institutions Code for
commission of any of this chapter's enumerated qualifying offenses,
or when it is determined that a qualifying offender has not given the
required samples. The Department of Corrections and the Department
of the Youth Authority shall adopt the policies and regulations for
implementing this chapter with advice from and in consultation with
the Department of Justice DNA Laboratory Director.
The Department of Corrections and the Department of the Youth
Authority shall submit copies of their policies and regulations with
respect to this chapter to the Department of Justice DNA Laboratory
Director, and periodically shall submit to the director written
reports updating the director as to the status of their compliance
with this chapter.
(f) (1) When the specimens, samples, and print impressions
required by this chapter are collected at a county jail or other
county detention facility, including a private community correctional
facility, the county sheriff or chief administrative officer of the
county jail or other detention facility shall be responsible for
ensuring all of the following:
(A) The requisite specimens, samples, and print impressions are
collected from qualifying offenders during the intake process at that
facility, or reasonably promptly thereafter.
(B) The requisite specimens, samples, and print impressions are
collected as soon as administratively practicable after a qualifying
offender reports to the facility for the purpose of providing
specimens, samples, and print impressions.
(C) The specimens, samples, and print impressions collected
pursuant to this chapter are forwarded immediately to the Department
of Justice, and in compliance with department policies.
(2) The specimens, samples, and print impressions required by this
chapter shall be collected by a person using a collection kit
approved by the Department of Justice and in accordance with the
requirements and procedures set forth in subdivision (b) of Section
298.
(3) The counties shall be reimbursed for the costs of obtaining
specimens, samples, and print impressions subject to the conditions
and limitations set forth by the Department of Justice policies
governing reimbursement for collecting specimens, samples, and print
impressions pursuant to this chapter.
(g) Any funds appropriated by the Legislature to implement this
chapter, including funds to reimburse counties, shall be deposited
into the Department of Justice DNA Testing Fund as created by
paragraph (2) of subdivision (b) of Section 290.3.
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 saliva 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.
(2) Known and evidentiary specimens and samples from crime scenes
or criminal investigations.
(3) Missing or unidentified persons.
(4) Offenders required to provide specimens, samples, and print
impressions under this chapter.
(5) Anonymous DNA records used for training, research, statistical
analysis of populations, or quality control.
(d) The computerized data bank 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 samples for quality control or other
purposes to those who request samples.
Article 2. Offenders Subject to Sample Collection
296. (a) (1) Any person who is convicted of, or pleads guilty or
no contest to, any of the following crimes, or is found not guilty by
reason of insanity of any of the following crimes, shall, regardless
of sentence imposed or disposition rendered, be required to provide
two specimens of blood, a saliva sample, right thumbprints, and a
full palm print impression of each hand for law enforcement
identification analysis:
(A) Any offense or attempt to commit any felony offense described
in Section 290, or any felony offense that imposes upon a person the
duty to register in California as a sex offender under Section 290,
except any offense involving lewd and lascivious conduct under
Section 272 and any offense under subdivision (d) of Section 647.
(B) Murder in violation of Section 187, 190, or 190.05, or an
attempt to commit murder.
(C) Voluntary manslaughter in violation of Section 192 or an
attempt to commit voluntary manslaughter.
(D) Felony spousal abuse in violation of Section 273.5.
(E) Aggravated sexual assault of a child in violation of Section
269.
(F) A felony offense of assault or battery in violation of Section
217.1, 220, 241.1, 243, 243.1, 243.3, 243.4, 243.7, 244, 245, 245.2,
245.3, or 245.5.
(G) Kidnapping in violation of subdivisions (a) to (e), inclusive,
of Section 207, or Section 208, 209, 209.5, or 210, or an attempt to
commit any of these offenses.
(H) Mayhem in violation of Section 203 or aggravated mayhem in
violation of Section 205, or an attempt to commit either of these
offenses.
(I) Torture in violation of Section 206 or an attempt to commit
torture.
(2) Any person who is required to register under Section 290
because of the commission of, or the attempt to commit, a felony
offense specified in Section 290, or who is convicted of murder in
violation of Section 190 or 190.05, or who is convicted of a felony
offense of assault or battery in violation of Section 217.1, 220,
241.1, 243, 243.1, 243.3, 243.4, 243.7, 244, 245, 245.2, 245.3, or
245.5, and who is committed to the state prison, a county jail, or
any institution under the jurisdiction of the Department of the Youth
Authority where he or she was confined, or is granted probation, or
is released from a state hospital to which he or she was committed as
a mentally disordered sex offender under Article 1 (commencing with
Section 6300) of Chapter 2 of Part 2 of Division 6 of the Welfare and
Institutions Code, shall be required to provide two specimens of
blood, a saliva sample, a right thumbprint, and a full palm print
impression to that institution or, in the case of a person granted
probation, to a person and at a location within the county designated
for testing.
(b) The provisions of this chapter and its requirements for
submission to testing as soon as administratively practicable to
provide specimens, samples, and print impressions as described in
subdivision (a) shall apply regardless of placement or confinement in
any mental hospital or other public or private treatment facility,
and shall include, but not be limited to, the following persons,
including juveniles:
(1) Any person committed to a state hospital or other treatment
facility as a mentally disordered sex offender under Article 1
(commencing with Section 6300) of Chapter 2 of Part 2 of Division 6
of the Welfare and Institutions Code.
(2) Any person who has a severe mental disorder as set forth
within the provisions of Article 4 (commencing with Section 2960) of
Chapter 4 of Title 1 of Part 3 of the Penal Code.
(3) Any person found to be a sexually violent predator pursuant to
Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of
Division 6 of the Welfare and Institutions Code.
(c) The provisions of this chapter are mandatory and apply whether
or not the court advises a person, including any juvenile, that he
or she must provide the data bank and data base specimens, samples,
and print impressions as a condition of probation, parole, or any
plea of guilty, no contest, or not guilty by reason of insanity, to
any of the offenses described in subdivision (a).
296.1. (a) Any person, including any juvenile, who comes within
the provisions of this chapter for an offense set forth in
subdivision (a) of Section 296, and who is granted probation, or
serves his or her entire term of confinement in a county jail, or is
not sentenced to a term of confinement in a state prison facility, or
otherwise bypasses a prison inmate reception center maintained by
the Department of Corrections, shall, as soon as administratively
practicable, but in any case, prior to physical release from custody,
be required to provide two specimens of blood, a saliva sample, and
thumb and palm print impressions as set forth in subdivision (a) of
Section 296, at a county jail facility or other state, local, or
private facility designated for the collection of these specimens,
samples, and print impressions, in accordance with subdivision (f) of
Section 295.
If the person subject to this chapter is not incarcerated at the
time of sentencing, the court shall order the person to report within
five calendar days to a county jail facility or other state, local,
or private facility designated for the collection of specimens,
samples, and print impressions to provide these specimens, samples,
and print impressions in accordance with subdivision (f) of Section
295.
(b) If a person who comes within the provisions of this chapter
for an offense set forth in subdivision (a) of Section 296 is
sentenced to serve a term of imprisonment in a state correctional
institution, the Director of Corrections shall collect the blood
specimens, saliva samples, and thumb and palm print impressions
required by this chapter from the person during the intake process at
the reception center designated by the director, or as soon as
administratively practicable thereafter at a receiving penal
institution.
(c) Any person, including, but not limited to, any juvenile and
any person convicted and sentenced to death, life without the
possibility of parole, or any life or indeterminate term, who is
imprisoned or confined in a state correctional institution, a county
jail, a facility within the jurisdiction of the Department of the
Youth Authority, or any other state, local, or private facility after
a conviction of any crime, or disposition rendered in the case of a
juvenile, whether or not that crime or offense is one set forth in
subdivision (a) of Section 296, shall provide two specimens of blood,
a saliva sample, and thumb and palm print impressions pursuant to
this chapter, as soon as administratively practicable once it has
been determined that both of the following apply:
(1) The person has been convicted in California of a qualifying
offense described in subdivision (a) of Section 296 or of a similar
crime under the laws of the United States or any other state that
would constitute an offense described in subdivision (a) of Section
296.
(2) The person's blood specimens, saliva samples, and thumb and
palm print impressions authorized by this chapter are not in the
possession of the Department of Justice DNA Laboratory as part of the
DNA data bank program.
This subdivision applies regardless of when the person was
convicted of the qualifying offense described in subdivision (a) of
Section 296 or a similar crime under the laws of the United States or
any other state, or when disposition was rendered in the case of a
juvenile who is adjudged a ward of the court for commission of a
qualifying offense described in subdivision (a) of Section 296 or a
similar crime under the laws of the United States or any other state.
(d) Any person, including any juvenile, who comes within the
provisions of this chapter for an offense set forth in subdivision
(a) of Section 296, and who is on probation or parole, shall be
required to provide two specimens of blood, a saliva sample, and
thumb and palm print impressions as required pursuant to this
chapter, if it is determined that the person has not previously
provided these specimens, samples, and print impressions to law
enforcement, or if it is determined that these specimens, samples,
and print impressions are not in the possession of the Department of
Justice. The person shall have the specimens, samples, and print
impressions collected within five calendar days of being notified by
a law enforcement agency or other agency authorized by the Department
of Justice. The specimens, samples, and print impressions shall be
collected in accordance with subdivision (f) of Section 295 at a
county jail facility or other state, local, or private facility
designated for this collection.
This subdivision shall apply regardless of when the crime
committed became a qualifying offense pursuant to this chapter.
(e) When an offender from another state is accepted into this
state under any of the interstate compacts described in Article 3
(commencing with Section 11175) or Article 4 (commencing with Section
1189) of Chapter 2 of Title 1 of Part 4 of this code, or Chapter 4
(commencing with Section 1300) of Part 1 of Division 2 of the Welfare
and Institutions Code, or under any other reciprocal agreement with
any county, state, or federal agency, or any other provision of law,
whether or not the offender is confined or released, the acceptance
is conditional on the offender providing blood specimens, saliva
samples, and palm and thumb print impressions pursuant to this
chapter, if the offender was convicted of an offense which would
qualify as a crime described in subdivision (a) of Section 296, or if
the person was convicted of a similar crime under the laws of the
United States or any other state.
If the person is not confined, the specimens, samples, and print
impressions required by this chapter must be provided within five
calendar days after the offender reports to the supervising agent or
within five calendar days of notice to the offender, whichever occurs
first. The person shall report to a county jail facility in the
county where he or she resides or temporarily is located to have the
specimens, samples, and print impressions collected pursuant to this
chapter. The specimens, samples, and print impressions shall be
collected in accordance with subdivision (f) of Section 295.
If the person is confined, he or she shall provide the blood
specimens, saliva samples, and thumb and palm print impressions
required by this chapter as soon as practicable after his or her
receipt in a state, county, local, private, or other facility.
(f) Subject to the approval of the Director of the Federal Bureau
of Investigation, persons confined or incarcerated in a federal
prison or federal institution located in California who are convicted
of a qualifying offense described in subdivision (a) of Section 296
or of a similar crime under the laws of the United States or any
other state that would constitute an offense described in subdivision
(a) of Section 296, are subject to this chapter and shall provide
blood specimens, saliva samples, and thumb and palm print impressions
pursuant to this chapter if any of the following apply:
(1) The person committed a qualifying offense in California.
(2) The person was a resident of California at the time of the
qualifying offense.
(3) The person has any record of a California conviction for a sex
or violent offense described in subdivision (a) of Section 296,
regardless of when the crime was committed.
(4) The person will be released in California.
Once a federal data bank is established and accessible to the
Department of Justice, the Department of Justice DNA Laboratory
shall, upon the request of the United States Department of Justice,
forward the samples taken pursuant to this chapter to the United
States Department of Justice DNA data bank laboratory. The samples
and impressions required by this chapter shall be taken in accordance
with the procedures set forth in subdivision (f) of Section 295.
(g) If a person who is released on parole, furlough, or other
release, is returned to a state correctional institution for a
violation of a condition of his or her parole, furlough, or other
release, and is serving or at any time has served a term of
imprisonment for committing an offense described in subdivision (a)
of Section 296, and he or she did not provide specimens, samples, and
print impressions pursuant to the state's DNA data bank program, the
person shall submit to collection of blood specimens, saliva
samples, and thumb and palm print impressions at a state correctional
institution.
This subdivision applies regardless of the crime or Penal Code
violation for which a person is returned to a state correctional
institution and regardless of the date the qualifying offense was
committed.
296.2. (a) Whenever the DNA Laboratory of the Department of
Justice notifies the Department of Corrections or any law enforcement
agency that a biological specimen or sample, or print impression is
not usable for any reason, the person who provided the original
specimen, sample, or print impression shall submit to collection of
additional specimens, samples, or print impressions. The Department
of Corrections or other responsible law enforcement agency shall
collect additional specimens, samples, and print impressions from
these persons as necessary to fulfill the requirements of this
chapter, and transmit these specimens, samples, and print impressions
to the appropriate agencies of the Department of Justice.
(b) If a person, including any juvenile, is convicted of, pleads
guilty or no contest to, is found not guilty by reason of insanity
of, or is adjudged a ward of the court under Section 602 of the
Welfare and Institutions Code for committing, any of the offenses
described in subdivision (a) of Section 296, and has given a blood
specimen or other biological sample or samples to law enforcement for
any purpose, the DNA Laboratory of the Department of Justice is
authorized to analyze the blood specimen and other biological sample
or samples for forensic identification markers, including DNA
markers, and to include the DNA and forensic identification profiles
from these specimens and samples in the state's DNA and forensic
identification data bank and data bases.
This subdivision applies whether or not the blood specimen or
other biological sample originally was collected from the sexual or
violent offender pursuant to the data bank and data base program, and
whether or not the crime committed predated the enactment of the
state's DNA and forensic identification data bank program, or any
amendments thereto. This subdivision does not relieve a person
convicted of a crime described in subdivision (a) of Section 296, or
otherwise subject to this chapter, from the requirement to give blood
specimens, saliva samples, and thumb and palm print impressions for
the DNA and forensic identification data bank and data base program
as described in this chapter.
(c) Any person who is required to register under Section 290 for
the commission of any felony offense specified in Section 290 who has
not provided the specimens, samples, and print impressions described
in this chapter for any reason including the release of the person
prior to the enactment of the state's DNA and forensic identification
data base and data bank program, an oversight or error, or because
of the transfer of the person from another state, the person, as an
additional requirement of registration or of updating his or her
annual registration under paragraph (1) of subdivision (a) of Section
290 and subdivisions (e) and (f) of Section 290 shall give
specimens, samples, and print impressions as described in this
chapter for inclusion in the state's DNA and forensic identification
data base and data bank.
At the time the person registers or updates his or her
registration, he or she shall receive an appointment designating a
time and place for the collection of the specimens, samples, and
print impressions described in this chapter, if he or she has not
already complied with the provisions of this chapter.
As specified in the appointment, the person shall report to a
county jail facility in the county where he or she resides or is
temporarily located to have specimens, samples, and print impressions
collected pursuant to this chapter or other facility approved by the
Department of Justice for this collection. The specimens, samples,
and print impressions shall be collected in accordance with
subdivision (f) of Section 295.
If, prior to the time of the annual registration update, a person
is notified by the Department of Justice, a probation or parole
officer, other law enforcement officer, or officer of the court, that
he or she is subject to this chapter, then the person shall provide
the specimens, samples, and print impressions required by this
chapter within 10 calendar days of the notification at a county jail
facility or other facility approved by the department for this
collection.
Article 3. Data Base Applications
297. (a) The laboratories of the Department of Justice that are
accredited by the American Society of Crime Laboratory Directors
Laboratory Accreditation Board (ASCLD/LAB), and any crime laboratory
designated by the Department of Justice that is accredited by the
ASCLD/LAB, 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
and data bases in order to establish identity and origin of samples
for identification purposes.
(b) A biological sample obtained from a suspect in a criminal
investigation for the commission of any crime may be analyzed for
forensic identification profiles, including DNA profiles, by the DNA
Laboratory of the Department of Justice, which is accredited by the
ASCLD/LAB, or any crime laboratory designated by the Department of
Justice that is accredited by the ASCLD/LAB. Samples obtained from a
suspect shall only be compared to samples taken from the criminal
investigation for which he or she is a suspect and for which the
sample was originally taken either by court order or voluntarily.
(c) All laboratories, including the Department of Justice DNA
laboratories, contributing DNA profiles for inclusion in California's
DNA Data Bank shall be accredited by the ASCLD/LAB. Additionally,
each laboratory shall submit to the Department of Justice for review
the annual report required by the ASCLD/LAB which documents the
laboratory's adherence to ASCLD/LAB standards. The requirements of
this subdivision apply to California laboratories only and do not
preclude DNA profiles developed in California from being searched in
the National DNA Data Base (CODIS).
(d) Nothing in this section precludes laboratories meeting
Technical Working Group on DNA Analysis Methods (TWGDAM) guidelines
or standards promulgated by the DNA Advisory Board as established
pursuant to Section 14131 of Title 42 of the United States Code, from
performing forensic identification analyses, including DNA
profiling, independent of the Department of Justice DNA and forensic
identification data base and data bank program.
(e) The limitation on the types of offenses set forth in
subdivision (a) of Section 296 as subject to the collection and
testing procedures of this chapter is for the purpose of facilitating
the administration of this chapter. The detention, arrest,
wardship, or conviction of a person based upon a data bank match or
data base information is not invalidated if it is later determined
that the specimens, samples, or print impressions were obtained or
placed in a data bank or data base by mistake.
Article 4. Collection and Forwarding of Samples
298. (a) The Director of Corrections, or the Chief Administrative
Officer of the detention facility, jail, or other facility at which
the blood specimens, saliva samples, and thumb and palm print
impressions were collected shall cause these specimens, samples, and
print impressions to be forwarded promptly to the Department of
Justice. The specimens, samples, and print impressions shall be
collected by a person using a Department of Justice approved
collection kit and in accordance with the requirements and procedures
set forth in subdivision (b).
(b) (1) The Department of Justice shall provide all blood specimen
vials, mailing tubes, labels, and instructions for the collection of
the blood specimens, saliva samples, and thumbprints. The
specimens, samples, and thumbprints shall thereafter be forwarded to
the DNA Laboratory of the Department of Justice for analysis of DNA
and other forensic identification markers.
Additionally, the Department of Justice shall provide all full
palm print cards, mailing envelopes, and instructions for the
collection of full palm prints. The full palm prints, on a form
prescribed by the Department of Justice, shall thereafter be
forwarded to the Department of Justice for maintenance in a file for
identification purposes.
(2) The withdrawal of blood shall be performed in a medically
approved manner. Only health care providers trained and certified to
draw blood may withdraw the blood specimens for purposes of this
section.
(3) Right thumbprints and a full palm print impression of each
hand shall be taken on forms prescribed by the Department of Justice.
The palm print forms shall be forwarded to and maintained by the
Bureau of Criminal Identification and Information of the Department
of Justice. Right thumbprints also shall be taken at the time of the
withdrawal of blood and shall be placed on the forms and the blood
vial label. The blood vial and thumbprint forms shall be forwarded
to and maintained by the DNA Laboratory of the Department of Justice.
(4) The DNA laboratory of the Department of Justice is responsible
for establishing procedures for entering data bank and data base
information.
(c) (1) Persons authorized to draw blood under this chapter for
the data bank or data base shall not be civilly or criminally liable
either for withdrawing blood when done in accordance with medically
accepted procedures, or for obtaining saliva samples or thumb or palm
print impressions when performed in accordance with standard
professional practices.
(2) There is no civil or criminal cause of action against any law
enforcement agency or the Department of Justice, or any employee
thereof, for a mistake in placing an entry in a data bank or a data
base.
298.1. As of the effective date of this chapter, any person who
refuses to give any or all of the following, blood specimens, saliva
samples, or thumb or palm print impressions as required by this
chapter, once he or she has received written notice from the
Department of Justice, the Department of Corrections, any law
enforcement personnel, or officer of the court that he or she is
required to provide specimens, samples, and print impressions
pursuant to this chapter is guilty of a misdemeanor. The refusal or
failure to give any or all of the following, a blood specimen, saliva
sample, or thumb or palm print impression is punishable as a
separate offense by both a fine of five hundred dollars ($500) and
imprisonment of up to one year in a county jail, or if the person is
already imprisoned in the state prison, by sanctions for misdemeanors
according to a schedule determined by the Department of Corrections.
Article 5. Expungement of Information
299. (a) A person whose DNA profile has been included in the data
bank pursuant to this chapter shall have his or her information and
materials expunged from the data bank when the underlying conviction
or disposition serving as the basis for including the DNA profile has
been reversed and the case dismissed, the defendant has been found
factually innocent of the underlying offense pursuant to Section
851.8, the defendant has been found not guilty, or the defendant has
been acquitted of the underlying offense. The court issuing the
reversal, dismissal, or acquittal shall order the expungement and
shall send a copy of that order to the Department of Justice DNA
Laboratory Director. Upon receipt of the court order, the Department
of Justice shall expunge all identifiable information in the data
bank and any criminal identification records pertaining to the
person.
(b) (1) A person whose DNA profile has been included in a data
bank pursuant to this chapter may make a written request to expunge
information and materials from the data bank. The person requesting
the data bank entry to be expunged must send a copy of his or her
request to the trial court that entered the conviction or rendered
disposition in the case, to the DNA Laboratory of the Department of
Justice, and to the prosecuting attorney of the county in which he or
she was convicted, with proof of service on all parties. The court
has the discretion to grant or deny the request for expungement. The
denial of a request for expungement is a nonappealable order and
shall not be reviewed by petition for writ.
(2) Except as provided below, the Department of Justice shall
expunge all identifiable information in the data bank and any
criminal identification records pertaining to the person upon receipt
of a court order that verifies the applicant has made the necessary
showing at a noticed hearing, and that includes all of the following:
(A) The written request for expungement pursuant to this section.
(B) A certified copy of the court order reversing and dismissing
the conviction, or a letter from the district attorney certifying
that the defendant has been found factually innocent, the defendant
has been found not guilty, the defendant has been acquitted of the
underlying offense, or the underlying conviction has been reversed
and the case dismissed.
(C) Proof of written notice to the prosecuting attorney and the
Department of Justice that expungement has been requested.
(D) A court order verifying that no retrial or appeal of the case
is pending, that it has been at least 180 days since the defendant
notified the prosecuting attorney and the Department of Justice of
the expungement request, and that the court has not received an
objection from the Department of Justice or the prosecuting attorney.
(c) Upon order of the court, the Department of Justice shall
destroy any specimen or sample collected from the person and any
criminal identification records pertaining to the person, unless the
department determines that the person has otherwise become obligated
to submit a blood specimen as a result of a separate conviction,
juvenile adjudication, or finding of guilty or not guilty by reason
of insanity for an offense described in subdivision (a) of Section
296, or as a condition of a plea.
The Department of Justice is not required to destroy an
autoradiograph or other item obtained from a blood specimen if
evidence relating to another person subject to the provisions of this
chapter would thereby be destroyed.
Any identification, warrant, probable cause to arrest, or arrest
based upon a data bank match is not invalidated due to a failure to
expunge or a delay in expunging records.
(d) The DNA laboratory of the Department of Justice shall review
its data bank to determine whether it contains DNA profiles from
persons who are no longer suspects in a criminal case. Evidence
accumulated pursuant to this chapter from any crime scene with
respect to a particular person shall be stricken from the data bank
when it is determined that the person is no longer a suspect in the
case.
Article 6. Limitations on Disclosure
299.5. (a) All DNA and forensic identification profiles 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) 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 systems
maintained by the Department of Justice.
(c) 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.
(d) The fact that the blood specimens, saliva 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.
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.
(e) DNA 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, and district attorneys' offices, at
the request of the agency, except as specified in this section.
Dissemination of this information to law enforcement agencies and
district attorneys' offices outside this state shall be performed in
conformity with the provisions of this section. This information
shall be available to defense counsel upon court order.
(f) Any person who knowingly discloses DNA or other forensic
identification information developed pursuant to this section to an
unauthorized individual or agency, or for other than identification
purposes or purposes of parole or probation supervision, is guilty of
a misdemeanor.
(g) Furnishing DNA or other forensic identification information of
the defendant to his or her defense counsel for criminal defense
purposes in compliance with discovery is not a violation of this
section.
(h) It is not a violation of this section to disseminate
statistical or research information obtained from the offender's
file, the computerized data bank system, any of the DNA laboratory's
data bases, or the full palm print file, provided that the subject of
the file is not identified and cannot be identified from the
information disclosed. 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. All requests for statistical or
research information obtained from the DNA data bank shall be
cataloged by the Department of Justice. Commencing January 1, 2000,
the department shall submit an annual letter to the Legislature
including, with respect to each request, the requester's name or
agency, the purpose of the request, whether the request is related to
a criminal investigation or court proceeding, whether the request
was granted or denied, any reasons for denial, costs incurred or
estimates of the cost of the request, and the date of the request.
(i) 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 defense counsel upon court order.
(j) In order to maintain the computer system security of the
Department of Justice DNA and forensic identification data base and
data bank program, the computer software and data base structures
used by the DNA Laboratory of the Department of Justice to implement
this chapter are confidential.
(k) Nothing in this section shall preclude a court from ordering
appropriate discovery.
299.6. (a) Nothing in this chapter shall prohibit the sharing or
disseminating of population data base or data bank information 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 third party that the Department of Justice deems necessary
to assist the department's crime laboratory with statistical
analyses of the population data base or to assist in the recovery or
identification of human remains for humanitarian purposes, including
identification of missing persons.
(b) Nothing in this chapter shall prohibit the sharing or
disseminating of protocol and forensic DNA analysis methods and
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 third party that the Department of Justice deems necessary
to assist the department's crime laboratory with analyses of
forensic protocol, research methods, or quality control procedures.
(c) The population data base and data bank 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.
(d) The Department of Justice may provide portions of the blood
specimens and saliva samples collected pursuant to this chapter to
local public DNA laboratories for identification purposes provided
that the privacy provisions of this section are followed by the local
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 established by the Department of Justice pursuant to
subdivision (i) of Section 299.5, 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 DNA laboratory assumes all costs of securing
the specimens and samples and provides appropriate tubes, labels, and
instructions necessary to secure the samples.
(e) Any local public DNA laboratory that collects DNA typing
information shall comply with and be subject to all of the rules,
regulations, and restrictions of this chapter and shall follow the
policies of the DNA Laboratory of the Department of Justice.
299.7. The Department of Justice is authorized to dispose of
unused specimens and samples, unused portions of specimens and
samples, and expired specimens and samples in the normal course of
business and in a reasonable manner as long as the disposal method is
designed to protect the identity and origin of specimens and samples
from disclosure to third persons who are not a part of law
enforcement.
Article 7. Construction and Severability
300. Nothing in this chapter shall limit or abrogate any existing
authority of law enforcement officers to take, maintain, store, and
utilize DNA or forensic identification markers, blood specimens,
saliva samples, or thumb or palm print impressions for identification
purposes.
300.1. Nothing in this chapter shall be construed to restrict the
authority of the Department of Justice with respect to data banks
and data bases created by other statutory authority, including, but
not limited to, data bases related to fingerprints, firearms and
other weapons, child abuse, domestic violence deaths, child deaths,
driving offenses, missing persons, violent crime information as
described in Title 12 (commencing with Section 14200) of Part 4, and
criminal justice statistics permitted by Section 13305.
300.2. The provisions of this chapter are severable. If any
provision of this chapter or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
300.3. The duties and requirements of the Department of
Corrections and the Department of the Youth Authority pursuant to
this chapter shall commence on July 1, 1999.
SEC. 3. It is the intent of the Legislature that the Department of
Justice shall identify five hundred thousand dollars ($500,000) from
existing resources to fund the costs of implementing this act during
the first six months of its operation.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution for certain
costs that may be incurred by a local agency or school district
because in that regard this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.