Bill Text: CA AB275 | 2009-2010 | Regular Session | Amended

California Assembly Bill 275 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Missing persons: DNA database.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Passed) 2009-10-11 - Chaptered by Secretary of State - Chapter 228, Statutes of 2009. [AB275 Detail]

Download: California-2009-AB275-Amended.html
BILL NUMBER: AB 275	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 24, 2009

INTRODUCED BY   Assembly Member Solorio
   (Coauthor: Assembly Member Portantino)

                        FEBRUARY 12, 2009

   An act to amend  Section   Sections 
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 amended, 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
database for all cases involving the report of an unidentified
deceased person or a high-risk missing person.
   (2) The 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   database 
established by the Federal Bureau of Investigation. The sole purpose
of this  data base   database  shall be to
identify missing persons and shall be kept separate from the 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 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) 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

    (c)     (1)     A coroner
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 databank. After the department has taken a sample from the
remains for DNA analysis and 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 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 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   database 
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 
 Database  " shall be funded by a two dollar ($2) fee
increase on death certificates issued by a local  government
  governmental  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.
   (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 identification of any backlog of 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 Department of Justice  shall retain the authority
 to prioritize case analysis, giving priority to those cases
involving children and those involving homicide victims.
   (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.