California Acts of the 2015 Legislative Session
AB 1492, Chapter 487
BILL NUMBER: AB 1492 CHAPTERED 10/04/15 CHAPTER 487 FILED WITH SECRETARY OF STATE OCTOBER 4, 2015 APPROVED BY GOVERNOR OCTOBER 4, 2015 PASSED THE SENATE SEPTEMBER 10, 2015 PASSED THE ASSEMBLY SEPTEMBER 11, 2015 AMENDED IN SENATE SEPTEMBER 4, 2015 AMENDED IN SENATE AUGUST 31, 2015 AMENDED IN SENATE JULY 16, 2015 AMENDED IN SENATE JUNE 29, 2015 AMENDED IN ASSEMBLY APRIL 30, 2015 AMENDED IN ASSEMBLY APRIL 15, 2015 AMENDED IN ASSEMBLY MARCH 26, 2015 INTRODUCED BY Assembly Member Gatto (Coauthor: Assembly Member Atkins) FEBRUARY 27, 2015 An act to amend and add Sections 298 and 299 of the Penal Code, relating to DNA samplesLEGISLATIVE COUNSEL'S DIGEST AB 1492, Gatto. Forensic testing: DNA samples.
(1) 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 (the DNA Act) requires any adult person who is arrested or charged with any felony offense to provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. Existing law requires that blood specimens and buccal swab samples be forwarded promptly to the Department of Justice for analysis. Existing case law, People v. Buza (2014) 231 Cal.App.4th 1446, for which review has been granted by the California Supreme Court, holds that the DNA Act, to the extent it requires felony arrestees to submit to a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant, or a judicial or grand jury determination of probable cause, unreasonably intrudes on the arrestee's expectation of privacy and is invalid under the California Constitution. The DNA Act provides that it may be amended by a statute passed by each house of the Legislature that furthers the purpose of the measure.
This bill would state that it is the intention of the Legislature to further the purposes of the DNA Act in light of the above-specified case law. The bill would, if the California Supreme Court rules to uphold People v. Buza, require that a blood specimen or buccal swab sample taken from a person arrested for the commission of a felony be forwarded to the department after a felony arrest warrant has been signed by a judicial officer, a grand jury indictment has been found and issued, or a judicial determination of probable cause to believe the person has committed the offense for which he or she was arrested has been made.
(2) Existing law, as amended by the DNA Act, requires that a DNA specimen and sample be destroyed and that a searchable database profile be expunged from that databank program if the person from whom the specimen or sample was collected has no past or present offense or pending charge which qualifies that person for inclusion in the database and if that person submits an application, as specified. Existing law gives the court discretion to grant or deny the application.
This bill would, if the California Supreme Court rules to uphold People v. Buza, require the DNA specimen and sample to be destroyed and the searchable database profile expunged from the database without the requirement of an application.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
298. (a) The Secretary of the Department of Corrections and Rehabilitation, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab 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, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, buccal swab 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) Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
(4) 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...
