BILL NUMBER: AB 275 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Solorio
(Coauthor: Assembly Member Portantino)
FEBRUARY 12, 2009
An act to amend Section 14250 and 14251 of the Penal Code,
relating to missing persons, and declaring the urgency thereof, to
take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 275, as introduced, Solorio. Missing persons: DNA database.
Existing law requires the Department of Justice to develop a DNA
database for all cases involving the report of an unidentified
deceased person or a high-risk missing person, as defined, and
provides for the collection of DNA samples from unidentified deceased
persons and from potential sources for comparison, as specified.
Existing law requires that, until January 1, 2010, the database be
funded by a $2 increase on death certificates issued by a local
government agency or by the State of California. Existing law
specifies the procedure for identifying the backlog of unidentified
remains.
This bill would further detail the protocol for DNA sample
collection and handling. It would delete the expiration date for the
provision authorizing the collection of the $2 increase on death
certificates. This bill would also make clarifying changes to the
procedure for identifying any backlog of unidentified remains or
donated familial samples. By requiring the collection of the increase
on death certificates issued by local officials, the bill would also
impose a state-mandated local program.
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.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 14250 of the Penal Code is amended to read:
14250. (a) (1) The Department of Justice shall develop a DNA
data base database for all cases
involving the report of an unidentified deceased person or a
high-risk missing person.
(2) The data base database required
in paragraph (1) shall be comprised of DNA data from genetic markers
that are appropriate for human identification, but have no capability
to predict biological function other than gender. These markers
shall be selected by the department and may change as the technology
for DNA typing progresses. The results of DNA typing shall be
compatible with and uploaded into the CODIS DNA data base established
by the Federal Bureau of Investigation. The sole purpose of this
data base shall be to identify missing persons and shall be kept
separate from the data base database
established under Chapter 6 (commencing with Section 295) of Title 9
of Part 1.
(3) The Department of Justice shall compare DNA samples taken from
the remains of unidentified deceased persons with DNA samples taken
from personal articles belonging to the missing person, or from the
parents or appropriate relatives of high-risk missing persons.
(4) For the purpose of this data base
database , "high-risk missing person" means a person missing as
a result of a stranger abduction, a person missing under suspicious
circumstances, a person missing under unknown circumstances, or where
there is reason to assume that the person is in danger, or deceased,
and that person has been missing more than 30 days, or less than 30
days in the discretion of the investigating agency.
(b) The department shall develop standards and guidelines for the
preservation and storage of DNA samples. Any agency that is required
to collect samples from unidentified remains for DNA testing shall
follow these standards and guidelines. These guidelines shall address
all scientific methods used for the identification of remains,
including DNA, anthropology, odontology, and fingerprints.
(c) (1) A If the coroner or
medical examiner with the aid of fingerprints, dental charts, dental
X-rays and any other identifying findings is unable to establish the
identity of the body or human remains, the coroner or medical
examiner shall collect samples for DNA testing from the remains
of all unidentified persons and shall send those samples ,
within 90 days of the date the body or human remains were
discovered, to the Department of Justice for DNA testing and
inclusion in the DNA data bank databank
. After the department has taken a sample from the remains for DNA
analysis and analyzed it completed all DNA
testing , the remaining evidence shall be returned to the
appropriate local coroner.
(2) After a report has been made of a person missing under
high-risk circumstances, the responsible investigating law
enforcement agency shall inform the parents or other appropriate
relatives that they may give a voluntary sample for DNA testing or
may collect a DNA sample from a personal article belonging to the
missing person if available. The samples shall be taken , within
90 days of the date a family member volunteers to submit samples,
by the appropriate law enforcement agency in a manner
prescribed by the Department of Justice. The responsible
investigating law enforcement agency shall wait no longer than 30
days after a report has been made to inform the parents or other
relatives of their right to give a sample.
(3) The Department of Justice shall develop a standard release
form that authorizes a mother, father, or other relative to
voluntarily provide the sample. The release shall explain that DNA is
to be used only for the purpose of identifying the missing person
and that the DNA sample and profile will be destroyed upon request.
No incentive or coercion shall be used to compel a parent or relative
to provide a sample.
(4) The Department of Justice shall develop a model kit that law
enforcement shall use when taking samples from parents and relatives.
(5) Before submitting the sample to the department for analysis,
law enforcement shall reverify the status of the missing person.
After 30 days has elapsed from the date the report was filed, law
enforcement shall send the sample to the department for DNA testing
and inclusion in the DNA data base database
, with a copy of the crime report, and any supplemental
information.
(6) All retained samples and DNA extracted from a living person,
and profiles developed therefrom, shall be used solely for the
purpose of identification of the deceased's remains. All samples and
DNA extracted from a living person, and profiles developed therefrom,
shall be destroyed after a positive identification with the deceased'
s remains is made and a report is issued, unless any of the following
has occurred:
(A) The coroner has made a report to a law enforcement agency
pursuant to Section 27491.1 of the Government Code, that he or she
has a reasonable ground to suspect that the identified person's death
has been occasioned by another by criminal means.
(B) A law enforcement agency makes a determination that the
identified person's death has been occasioned by another by criminal
means.
(C) The evidence is needed in an active criminal investigation to
determine whether the identified person's death has been occasioned
by another by criminal means.
(D) A governmental entity is required to retain the material
pursuant to Section 1417.9.
(7) Notwithstanding any other provisions of this section, upon the
request of any living person who submits his or her DNA sample and
profile pursuant to this section, including the parent or guardian of
a child who submits a DNA sample of the child, the DNA sample shall
be removed from the DNA data base database
.
(d) All DNA samples and profiles developed therefrom shall be
confidential and shall only be disclosed to personnel of the
Department of Justice, law enforcement officers, coroners, medical
examiners, district attorneys, and persons who need access to a DNA
sample for purposes of the prosecution or defense of a criminal case,
except that a law enforcement officer or agency may publicly
disclose the fact of a DNA profile match after taking reasonable
measures to first notify the family of an unidentified deceased
person or the family of a high-risk missing person that there has
been an identification.
(e) All DNA, forensic identification profiles, and other
identification information retained by the Department of Justice
pursuant to this section are exempt from any law requiring disclosure
of information to the public.
(f) (1) Any person who knowingly discloses DNA or other forensic
identification information developed pursuant to this section to an
unauthorized individual or agency, or for any purpose other than for
identification or for use in a criminal investigation, prosecution,
or defense, is guilty of a misdemeanor.
(2) A person who collects, processes, or stores DNA or DNA samples
from a living person that are used for DNA testing pursuant to this
section who does either of the following is liable in civil damages
to the donor of the DNA in the amount of five thousand dollars
($5,000) for each violation, plus attorney's fees and costs:
(A) Fails to destroy samples or DNA extracted from a living person
pursuant to paragraph (6) of subdivision (c).
(B) Discloses DNA samples in violation of subdivision (d).
(g) (1) If a disclosure or failure to destroy samples described in
paragraph (2) of subdivision (f) is made by an employee of the
Department of Justice, the department shall be liable for those
actions of its employee.
(2) Notwithstanding any other law, the remedy in this section
shall be the sole and exclusive remedy against the department and its
employees available to the donor of the DNA against the department
and its employees.
(3) The department employee disclosing DNA or other forensic
identification information or otherwise violating this section shall
be absolutely immune from civil liability under this or any other
law.
(h) It is not an unauthorized disclosure or violation of this
section to release DNA and other forensic identification information
as part of a judicial or administrative proceeding, to a jury or
grand jury, or in a document filed with a court or administrative
agency, or for this information to become part of the public
transcript or record of proceedings.
(i) In order to maintain computer system security, the computer
software and data base structures used by the DNA laboratory of the
Department of Justice to implement this chapter are confidential.
SEC. 2. Section 14251 of the Penal Code is amended to read:
14251. (a) The "Missing Persons DNA Data Base" shall be funded by
a two dollar ($2) fee increase on death certificates issued by a
local government agency or by the State of California. The issuing
agencies may retain up to 5 percent of the funds from the fee
increase for administrative costs. This fee shall remain in
effect only until January 1, 2010.
(b) Funds shall be directed on a quarterly basis to the "Missing
Persons DNA Data Base Fund," hereby established, to be administered
by the department for establishing and maintaining laboratory
infrastructure, DNA sample storage, DNA analysis, and labor costs for
cases of missing persons and unidentified remains. Funds may also be
distributed by the department to various counties for the purposes
of pathology and exhumation consistent with this title. The
department may also use those funds to publicize the database for the
purpose of contacting parents and relatives so that they may provide
a DNA sample for training law enforcement officials about the
database and DNA sampling and for outreach.
(c) The department shall create an advisory committee,
comprised of coroners and appropriate law enforcement officials, and
interested stakeholders to prioritize the identification of
the any backlog of
unidentified remains. The identification of the backlog
human remain samples or samples donated by a family member or
from a personal article belonging to the missing person may be
outsourced to other laboratories at the department's discretion.
(d) (1) The death certificate fee increase shall begin and funds
shall be directed to the Missing Persons DNA Data Base Fund beginning
January 1, 2001. Funding for year one shall be used to develop the
database and laboratory infrastructure, and to establish Department
of Justice protocols and personnel.
(2)
(d) (1) The Department of Justice
shall begin case analysis in 2002. The Department of Justice
shall retain the authority to prioritize case analysis,
giving priority to those cases involving children and those
involving homicide victims .
(3)
(2) If federal funding is made available, it shall be
used to assist in the identification of the backlog of high-risk
missing person cases and long-term unidentified remains.
SEC. 3. If the Commission on State Mandates determines that this
act contains 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.
SEC. 4. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to track down persons who threaten the public peace and
the safety of our citizens, it is necessary for this act to take
effect immediately.