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Collection from Convicted/Adjudicated Felony Offenders: Who qualifies for DNA collection following conviction or adjudication?
(a) Any person (adult or juvenile) who is newly convicted/adjudicated of a felony offense, or who is newly convicted/adjudicated of a misdemeanor or infraction offense but has a prior felony (California or equivalent out-of-state crime) of record; (b) Any person (adult or juvenile) currently in custody or on probation, parole, or any other supervised release after conviction for any felony offense committed prior to November 3, 2004; (c) Any person (adult or juvenile) currently on probation or any other supervised release for any offense with a prior felony (California or equivalent out-of-state crime) of record. (See Cal. Pen. Code, §§ 295, 296, 296.1.)
Note: Because sample collection is an administrative consequence of conviction/adjudication or placement in designated institutions, it is the responsibility of law enforcement or the courts to ensure that samples are taken from qualifying offenders in conjunction with conviction or as soon as possible thereafter. For collection to occur for any of the above, the offender must be under the jurisdiction or control of the court, government or criminal justice system (e.g., in custody, on probation, on parole, or on other release or supervision).
Collection from Registering Sex and Arson Offenders: Can we collect a DNA sample from PC 290 sex registrants who became registrants as a result of a misdemeanor conviction?
Yes. Both sex registrants and arson registrants whose underlying offense was a misdemeanor qualify for DNA collection. Collection should take place at their registration update or at an appointed time thereafter, or at any time within 10 days of notification.
Collection from Arrestees: Which arrestees are subject to DNA collection?
Until January 1, 2009, only adults arrested on or after November 3, 2004 for murder, voluntary manslaughter, a felony PC 290 sex offense, or an attempt to commit one of those crimes were subject to DNA collection under Proposition 69. As of January 1, 2009, adults arrested for any felony offense are subject to DNA collection.
Note: Prior felony convictions do not trigger DNA collection from any arrestees. The arrestee provision is not retroactive.
Can law enforcement agencies that make arrests obtain a sample from qualifying arrestees before they are brought to our jails for booking?
Yes. Proposition 69 provides that collection take place "as soon as administratively practicable after arrest." Each city and/or county may decide how that will be implemented in collaboration with their local departments. The main issue will be the ability of the agency to access the rap sheet or some other resource to determine if samples already have been collected (through a county-wide database, for instance) and to identify the individual, preferably via prints and CAL-ID.
Is a person who is the subject of a “direct file” homicide complaint obligated to provide an “arrestee” DNA sample?
California Penal Code section 834 defines an “arrest” as “taking a person into custody, in a case and in the manner authorized by law.” Presumably a homicide defendant would be taken into custody at some point before trial, at which time an arrestee DNA sample must be provided.
Are juveniles subject to DNA collection if they have not been made a ward of the court?
Juveniles who have been adjudicated (i.e., petition sustained) of a felony qualify for DNA collection whether they are made a ward of the court or not.
Are juveniles placed on informal probation and juveniles participating in deferred entry of judgment programs subject to DNA collection requirements?
No. You cannot collect DNA from juveniles who are on deferred entry of judgment (DEOJ) or informal probation, because the admission of culpability was "provisional" and will be deleted if the DEOJ conditions are met, i.e., there will be no adjudication of record.
Are juveniles convicted of a misdemeanor sex offense required to provide DNA samples?
Juveniles who are required to register as sex offenders under PC 290 qualify for DNA collection, whether the underlying offense was a felony or misdemeanor. If the juvenile was adjudicated of a misdemeanor offense that carries with it optional 290 registration, but the court decided not to impose the registration requirement, that juvenile does not have to provide DNA samples (unless he has a prior felony of record).
As an investigator, can I collect a DNA sample from someone I consider a suspect in a crime, but whom I have not yet arrested?
No, unless it is legally obtained without regard to Proposition 69. Proposition 69 does not authorize collection of DNA samples from suspects in criminal investigations. Law enforcement agencies may, however, submit to their primary lab services provider for DNA testing and entry into the State Database a known sample of a suspect’s blood, saliva, or other biological substance that has been obtained without regard to Proposition 69 (e.g., by consent or warrant). (Cal. Pen. Code, § 297(b)(1).) Once a suspect sample has been accepted for inclusion in the State’s DNA Data Bank Program, the submitting agency must notify the Department of Justice within two years whether the person remains a suspect in that particular investigation.
How do arresting agencies or custodial facilities know if a person who qualifies for DNA collection has already provided a sample?
The agency should (1) check the state rap sheet for a collection "flag"; (2) check any local or county criminal history records for a DNA collection notation. The agency also can contact the DOJ DNA Lab at (510) 620-3300 during business hours [for collection confirmation press "O" in the automated answering system] to inquire as to the collection status of an offender.
Does DOJ have a timetable for placing flags in C.I.I. when samples are received by DOJ?
Yes. It is anticipated that all rap sheets not already annotated will be updated with the appropriate "do not collect" flag within one week of receipt of the collection kit at the Richmond DNA Lab.
Can DOJ release a comprehensive list of offenders requiring samples?
No. That would likely violate the use and disclosure restrictions built into the DNA Database Act. DOJ may, however, be able to compare electronically-submitted lists of potential qualifying offenders with the list of offenders whose DNA profiles are currently in the Database, and assist the submitting agency in identifying offenders who still owe a DNA sample.
Do palm prints need to be taken again if previously supplied?
Do adults placed on deferred entry of judgment qualify for DNA collection?
No. The pleas or admissions that are entered as part of deferred entry of judgment ("DEOJ") agreements do not trigger DNA collection requirements for juveniles or adults. Those pleas are provisional in nature, and will be dismissed if the conditions of the DEOJ term are satisfied. Therefore, the pleas (or admissions) are not "convictions" for purposes of DNA collection. Of course, if the offender fails to satisfy the conditions of the DEOJ term, the plea will become a conviction of record and DNA collection can occur at that point.
What is the specific definition of a mental health treatment program as it applies to Proposition 69?
The "mental health facility" referenced in PC 296(a)(3) refers to any mental health facility to which the offender is referred by the court and subsequently housed before conviction, i.e., charges have been filed, but the defendant is declared incompetent to stand trial, enters a "not guilty by reason of insanity" plea, etc, or the mental health facility in which a person is housed pursuant to Penal Code section 2684 et seq. in lieu of a state prison commitment. Most substance abuse treatment programs would likely not be included, unless those offenders qualified for DNA collection by virtue of being convicted of a felony offense or a misdemeanor with a felony prior.
Will adult and juvenile offenders who qualify for DNA testing be required to return to court if they do not complete such testing by sentencing or adjudication?
Collection should occur before sentencing or disposition. However, there is no requirement in Prop. 69 that the offender be returned to court if the DNA sample is not collected before sentencing or disposition. In that case (e.g., for everyone currently on probation, in custody, or on parole who has not given a sample), DNA collection should be done by the agency supervising or housing the offender. Note, however, that a judge must "inquire and verify" that DNA collection has occurred prior to sentencing. (Cal. Pen. Code, § 296(f))
Do county facilities collect DNA samples from federal prisoners who are being housed there pretrial (i.e., not yet convicted)?
Generally, individuals under federal jurisdiction who are being housed at your facilities pending trial have not yet been convicted, and so are not subject to Prop. 69 DNA collection while in your custody. Following conviction in federal court, individuals will be subject to DNA collection if they qualify under Prop. 69 (e.g., the person is incarcerated in a federal institution, AND committed a qualifying offense in California, OR was a resident of California at the time of the qualifying offense, OR the person has a California felony conviction of record, OR the person will be released in California). If the person qualifies, the U.S. Marshals or other federal authorities may collect the DNA. (See Cal. Pen. Code, § 296.1(a)(6).)
Do county facilities collect DNA samples from out-of-state prisoners serving sentences locally?
Inmates who were convicted outside California but are incarcerated in your facilities are potentially subject to DNA collection. Your facilities should do the collection if the offender has a California felony conviction of record, or an out-of-state conviction (past or present) that is the equivalent of a California felony. You can and should make DNA collection a condition of accepting the inmate into your facility under interstate compact or other reciprocal agreement. (See Cal. Pen. Code, § 296.1(a)(5) & (b).)
Will probation be responsible for collection for cases being supervised in another state via ISC (interstate compact)?
Yes. Probation should make arrangements with the out-of-state authorities supervising the offender regarding collection of DNA from qualifying California offenders. It is preferred that collection take place prior to a person’s transport to another state or jurisdiction.
How are buccal samples collected?
The Department of Justice provides a standard DNA collection kit to all local and state law enforcement agencies at no cost to the agencies. A new kit, including new plastic gloves for handling the collector, is used for each DNA sample collection. The kit requires local agency personnel to:
Some law enforcement agencies in California have now installed a "Live Scan" DNA data collection program that allows for the collection of identifying fingerprints (via the Automated Fingerprint Identification System) as well as the information needed on the usual Specimen Information Card, so that they can be transmitted securely to the DNA Lab electronically using a barcode number for reference. The properly labeled collector (in this case including the scanned barcode label), is still mailed to the DNA Lab, where the sample information is linked by scanning the barcode label on the buccal collector.
Will the law enforcement agency that collected DNA samples using the current blood/saliva kit be required to go back and also collect buccal swabs from those offenders?
No. Absent unusual circumstances, the blood/saliva samples will be used for Data Bank purposes, and no further sample will be required.
Can non-medical personnel administer the buccal swab procedure?
Yes. By statute, buccal swab samples "may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection." (Cal. Pen. Code § 298(b)(3).) The Department of Justice will provide training.
What is the law regarding refusals when the offender refuses to provide the required sample?
Under California law, the refusal or failure of a qualifying offender to provide a DNA database sample, or thumb or palm print impression after the individual receives written notice of the requirement to provide such samples, is a misdemeanor offense punishable 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 California Department of Corrections and Rehabilitation (CDCR). Each refusal is a separate offense. The law also authorizes use of reasonable force to collect DNA database samples, and thumb and palm print impressions after a refusal, as long as certain conditions are fulfilled, including prior written authorization of the supervising officer on duty, efforts to secure voluntary compliance from the refuser, and use of video recording if an individual must be extracted from a prison cell. (See Cal. Penal Code, § 298.1.) Pursuant to statute, the CDCR (for prisons) and the Corrections Standards Authority (for local detention facilities) have adopted guidelines for use of reasonable force. (See Cal. Penal Code, § 298.1, see also next FAQ.)
Will the California Corrections Standards Authority provide a "Standardized Use of Force Report" specific to DNA collection, or other similar policy?
The California Corrections Standards Authority has issued use of force regulations. They can be found in the regulations for Adult Detention Facilities (Minimum Standards for Local Detention Facilities) Title 15 (2008) on pages 23-24, 1059. DNA Collection, Use of Force. A copy of Title 15 is posted on the California Corrections Standards Authority's Website, pdf.
Will the state provide blood kits for refusals?
Yes. Any available DNA blood collection kit may be used until new blood kits can be obtained from CAL-DNA with the revised submission form. New submission forms can be provided for any remaining DNA blood collection kits you have in the interim.
Why does the CAL-DNA Data Bank Program retain offender DNA samples after the submissions have been fully profiled and how has this enabled California to keep pace with the best scientific technologies for identifying offenders?
The retention of CAL-DNA Data Bank samples is specifically authorized under California Penal Code Section 299.5 (b)*. Sample retention is an integral part of the quality control and assurance process. Because name, identity, or sample switches can occur on either data entry or in the course of sampling or processing the DNA database samples, the only assurance against such switches is through a confirmatory procedure that rechecks the processed data with the original information on the collector or card. In the confirmatory process the DNA from the original collector or card is also retyped and compared against the prior analysis along with a comparison of the recorded name and identification number on the card. Reanalyzing the sample allows the lab to confirm association between the sample profile and the information originally submitted. Further, if DNA database samples are to be processed and typed anonymously –without knowledge of an offender’s name–as is now done, it is important to reconfirm the association between sample and sample donor by reference to the original submission card, before the process is complete. (See also e.g., M. Dawn Herkenham, Retention of Offender DNA Samples Necessary to Ensure and Monitor Quality of Forensic DNA Efforts: Appropriate Safeguards Exist to Protect the DNA Samples From Misuse, Journal of Law, Medicine & Ethics (Symposium, Summer 2006) 380-384, at p. 381. [“One of the most important quality practices and protections for the release of personally identifiable information is the reanalysis of an offender sample in the event that a potential match is identified.”].) The Director of the FBI, as required by 42 U.S.C. § 14131, has adopted quality-assurance standards for CODIS-participating laboratories, such as California’s labs.
Sample retention also has played a primary role in California’s ability to ensure its DNA and Forensic Identification Database and Databank program is effective, and that California can use the best and most up-to-date identification technologies within the context of its confidential and use-restricted statutory program.
California's forensic identification database began with the passage of SB 809 in 1983—the first of its kind in the United States. The original database, following the lead of the Metropolitan Police Department in London, UK, included ABO secretion type and several protein isozyme types, which were the current state of the art in the forensic analysis of semen stains. The initial stains blood and saliva stains from the ABO and isozyme work were retained, and when the program expanded to include DNA forensic identification markers, the blood stains made from the early submissions were typed by the initial DNA typing technique RFLP based on standardized procedures developed at the first TWGDAM (Technical Working Group on DNA Analysis Methods) meetings (of which the CAL-DNA present Lab Director Ken Konzak was a member). Initially 3 and later 5 RFLP loci were identified by the group and the FBI as national “core loci” for a national DNA database. The California DNA Databank was formally established in 1990 with the passage of SB1408 and funding was received in 1994 to complete the analysis of all sex offenders in the backlog of databank submissions. The first 40,000 offender profiles in the CAL-DNA database were completed by this RFLP typing technology in June of 1998.
Additional research by the forensic community, lead by the TWGDAM successor group SWGDAM (Scientific Working Group on DNA Analysis Methods) also standardized the use of a new technology known as Short Tandem Repeats or STRs. The 13 CODIS Core STR Loci were established by the community and the National DNA Index System in November of 1997. Because California’s statute required the retention of offender samples, California was able to begin the process of converting the RFLP database to the newer, more sensitive, and more descriptive STR types.
California began converting the RFLP- profiled offender samples and typing of new offender samples using a 9-locus STR typing kit then available, known as Profiler Plus. The first 200,000 offender STR profiles developed by July 2001 (per CAL-DOJ’s 2001 budget) were these 9-locus profiles. Again, because California retained the offender samples after the original analysis, the Data Bank staff were able to go back to these 200,000 samples, as well as some of the original saliva stains collected and not previously typed by DNA identification markers from 1984, and complete the full 13-locus types required to search in the National DNA Index System (NDIS). The CAL-DNA Database now includes over 1.8 million convicted offender and arrestee profiles typed in these 13 STR core loci.
In November of 2010, Lab Director Ken Konzak from our Laboratory was asked to participate on a committee established by NDIS in May 2010, with the collaboration of SWGDAM members, to evaluate the expansion of the existing NDIS Core Loci to 20 or more loci. The stated purposes of the expansion were outlined in the committee report published by NDIS Custodian Douglas Hares in May of 2011 in a letter to the editor of Forensic Science International: Genetics titled “Expanding the CODIS core loci in the United States” (Forensic Sci Int Genet. 2012 Jan; 6(1):e52-4. Epub 2011 May 4). The three reasons listed include:
Without the retained samples from CAL-DNA’s existing forensic identification DNA database program, California could not effectively participate in this expansion which will “reduce the likelihood of adventitious matches” possible in its large and growing database. (See also John M. Butler, Advanced Topics in Forensic DNA Typing Methodology (2012), p. 250 (“As DNA databases grow in size and more comparisons are made, the potential exists for adventitious matches to occur unless additional loci are added to provide a finer resolution or increased ability to distinguish DNA profiles from one another.”)
* PC 299.5 (b) All evidence and forensic samples containing biological material retained by the Department of Justice DNA Laboratory or other state law enforcement agency are exempt from any law requiring disclosure of information to the public or the return of biological specimens, samples, or print impressions.
How can a person get his/her sample and DNA profile expunged or removed from the CAL-DNA Data Bank? Is there a way to expedite the sample expungement process?
California Penal Code Section 299 sets forth the criteria for DNA Database sample expungement. Expungement can be accomplished easily and quickly when a DNA sample qualifies for removal from the State database and a person provides sufficient documentation of his/her identity, legal status and criminal history to the California Department of Justice, DNA Database Program (CAL-DNA). A petitioner whose sample qualifies for DNA database sample expungement and who provides appropriate documentation can expedite the process so that neither a court hearing, nor a 180-day waiting period permitted by Section 299, likely will be necessary.
If CAL-DNA receives sufficient documentation showing that an individual meets the criteria for expungement of his or her DNA sample, CAL-DNA will review and research the request and issue a response to the petitioner indicating that the expungement was completed and the sample destroyed, or notify the petitioner of the legal reason the Department is required to retain the sample and profile.
If all of the documentation is provided or readily available, expungements using this expedited procedure are generally completed within 2 to 4 weeks.
To date, over 96% of expungement requests have resulted in expungement, removal, or, in a small number of those cases, confirmation that no buccal sample had been submitted under the name provided. Denials are based on statutory requirements, generally because the offender has another qualifying offense.
CLICK ON THE LINK BELOW FOR A FORM TO REQUEST CAL-DNA TO EXPUNGE A DNA DATABASE SAMPLE AND PROFILE:
STREAMLINED EXPUNGEMENT APPLICATION FORM, pdf
MAIL THE REQUEST FOR DNA DATABASE SAMPLE EXPUNGEMENT TO:
California Department of Justice
CAL-DNA Data Bank Program
Attn: Expungement Requests
1001 W. Cutting Blvd., Suite 110
Richmond, CA 94804
NOTE: If a DNA database sample expungement request is denied, a person may still initiate a court proceeding by completing, filing, and serving the California Judicial Council form, pdf on the CAL-DNA Program and the District Attorney's Office of the County where the DNA sample was collected.
Are DNA Database samples collected from arrestees searched as part of the Department of Justice’s Familial Search Policy?
No. Pursuant to its policy, California does not do familial searches of DNA database samples collected from arrestees. Only DNA database profiles from samples collected from convicted offenders are searched as part of California’s familial search project.
Does DOJ share Convicted Offender or Arrestee samples or their DNA profiles collected under PC 296 with any local, state, federal or international law enforcement agency, with qualified private forensic DNA laboratories or other third parties?
There are many use and confidentiality restrictions on DNA database sample and profile use and dissemination. (See e.g. Cal. Pen. Code, § 299.5.) DNA samples are shared with other state, federal or international law enforcement agencies. (See e.g. Cal. Pen. Code, §§ 299.5 & 299.6.) Convicted Offender and Arrestee DNA profiles are only searched by the CAL-DNA Data Bank at the state level and at the national level as DNA profiles identified only by a DOJ specimen number. No demographic or personally identifying information is provided to the National DNA Index database and system, according to both CAL-DNA Data Bank and FBI procedures. DNA profiles developed from crime scenes or forensic unknown profiles are the profiles that are shared between qualified public crime laboratories that belong to the National DNA Index System, as well as with international law enforcement bodies, like Interpol or the RCMP. Qualifying public crime labs must provide qualified forensic evidence profiles for searching at CAL-DNA or NDIS. Offender profiles (and particularly the entire Offender DNA Databases) are not provided to those agencies or anyone else, except for the specific DNA profiles involved in individual cases as matches or hits are made and confirmed.
Under PC 298.3, to ensure expeditious and economical processing of offender samples for inclusion into CAL-DNA and CODIS, DOJ is authorized to contract with other qualifying accredited laboratories for the anonymous analysis of samples for forensic identification testing. Samples can also be provided to local California law enforcement crime laboratories that agree to follow the procedures defined by the CAL-DNA Data Bank for DOJ’s own operations, though this is rarely done and typically for individual investigations.
Who ultimately is responsible for implementation (not just collection) within the County?
By law, the Department of Justice administers the CAL-DNA Data Bank Program, and is ultimately responsible for implementing Proposition 69. The law does not specify a "lead" implementation entity within counties. Counties should organize themselves by coordinating collection responsibilities between law enforcement, prosecutorial, and correctional agencies that may have contact with a person who qualifies for DNA collection. Municipal and county agencies also should coordinate the communication of the fact of collection between each other so as not to duplicate efforts. Over 75 percent of all DNA forensic identification database samples are now collected by local agencies at booking after an individual is arrested.
Are there any licensing or training requirements to collect the buccal swabs?
Buccal Collector used by the CAL-DNA Data Bank
There is no licensing requirement in the statute and DOJ does not plan to start one. However, there are training requirements. By law, buccal swab samples "may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection." (Pen. Code, § 298(b)(3).)
Prior to implementing buccal collection (or delivery of kits by DOJ), agencies are required to attend training sponsored or approved by DOJ. Proposition 69 phased in collection of felony arrestee DNA samples over four years, in part to allow the criminal justice system to be retrained on the practices necessary for collection, and for staffing and equipment changes related to DNA collection at felony arrest. As of July 31, 2011, DOJ has spent over 1,280 staff hours conducting 156 training sessions with over 3,500 attendees at sites throughout the state since August 2008 (when we first officially started recording this information). A history of the training already provided to law enforcement is provided in the Prop 69 Training Completed Dates and Locations Spreadsheet, pdf. (Note that this report does not reflect the extensive Proposition 69 training sessions DOJ conducted statewide prior to August 2008.) DOJ’s statewide regional training sessions, including those starting in January and February 2005, have provided instruction and training in collection practices and procedures, as well as an overview of the law to answer legal questions, and assistance to administrators establishing or revising a program.
As of July 31, 2011, 75% of all DNA database samples now collected by local agencies statewide are collected at arrest. In 2011, as of July 31, CAL-DNA has received an average of 13,000 arrestee samples a month. DOJ receives samples from 1,054 collection sites throughout the state.
Please contact the DOJ Jan Bashinski DNA Laboratory at: PC296.PC296@doj.ca.gov or (510) 620-3300 for information on any future training sessions.
Will there be any penalty for waiting until the buccal collection kits become available to begin collections, and when will those kits be available from DOJ?
There is no penalty for not collecting samples, but law enforcement and correctional agencies are obligated to collect DNA samples from qualified persons "as soon as administratively practicable." DOJ continued to reimburse agencies for use of existing kits until each agency had received DOJ-provided buccal kits after DOJ-approved training. Priority should first be given to those who are being released from parole/probation and second from confinement to probation or parole. Buccal collection kits are available to all qualifying agencies.
How can my law enforcement agency receive training in use of the buccal swab collectors?
Contact the DOJ Jan Bashinski DNA Laboratory at: PC296.PC296@doj.ca.gov to make training arrangements.
How do I obtain DNA collection kits for use by my agency?
Contact the DOJ Jan Bashinski DNA Laboratory at: PC296.PC296@doj.ca.gov.
What is the process and procedure for sending collected DNA samples to the DOJ lab?
Package the collection envelopes in groups and mail, or mail the collection envelopes individually. Agencies may also deliver completed collection kits to the Richmond Lab in person.
My agency is concerned with how to find the staff to do the blood draws if required to do it now.
Phlebotomists should be retained on staff or by contract even after implementing the buccal collection, because a 5% failure rate is within expectation for this technology and it is preferred that blood draws be used for repeat collections or refusers to ensure adequate sample collection.
In order to help law enforcement agencies estimate DNA sample collection volume, how many sex and arson offenders registrants have yet to provide DNA samples for database purposes based on state criminal history records? Also are there any other groups of convicted felony offenders who still may be required to provide a DNA database sample, even if not convicted of another felony offense?
As of February 2011, 1,043,168 people in California have been convicted of a felony offense, but have yet to provide a DNA forensic identification database sample pursuant to Penal Code section 295 et seq. This number includes 64,529 sex and arson registrants who are required by law to provide a DNA sample at any time (see Cal. Pen.Code, § 296.2 (c)), in addition to 978,639 previously convicted or adjudicated felons. Under the database law, while an individual previously convicted or adjudicated of a felony and who has completed their sentence and parole or probation is not required to provide a DNA sample now (including many of the 978,639 above), if one of those individuals is later convicted of a misdemeanor offense, that individual would be required to provide a DNA database sample based upon the prior felony conviction. (See, Pen. Code, § 296.1 (a) (2) &(3).) There also are over 9,000 additional individuals who are required to provide a DNA database sample because their prior sample failed to produce a DNA forensic identification profile or was unusable for another reason. (See Cal. Pen.Code, § 296.2 (a).)
How are Prop. 69 funds allocated?
As originally passed, the funding provided as part of Proposition 69 included a $1 addition to every $10 of fine collected. Government Code Section 76104.6, pdf. For those funds collected in 2005 and 2006, 30% stayed in the county. For funds collected in 2007, 50% stayed in the county. Starting in 2008, the percentage of the funds collected from that original $1 that was kept at the county-level was increased to 75%. The Legislature has subsequently determined the need to provide additional funding to support the CAL-DNA Data Bank Program and the Bureau of Forensic Services and imposed additional charges for every $10 of fine collected, managed in the same fashion.
Generally, counties use Proposition 69 funding to reimburse local law enforcement for expenses associated with DNA collection and verification of offender/arrestee identity & qualifying status and to reimburse local and state crime laboratories for evidence analysis and storage costs. There are no statutory requirements controlling disbursement of funds at the county level; each county apportions their funds and defines the reimbursement expenses they will reimburse within the statutory limitations.
It appears the initial split of funding between the State and Counties as well as the loan to the State fund took into consideration the need for CDC and CYA to obtain samples from current inmates and parolees under their supervision, but did not take into consideration the costs to Counties to obtain samples from the probationers currently under supervision of County Probation Departments. What steps are the Governor’s office and DOJ taking to provide funding for the collection of samples from current probationers before their term of probation expires. (Staffing and Live Scan/palm print equipment)?
Neither CDC nor CYA were provided with funding for DNA collection under Proposition 69. Because county probation departments (and other county agencies) are statutorily designated recipients of funds that will be collected pursuant to the Initiative’s funding measure, DOJ will not provide funding for collection from probationers.
Will state law enforcement agencies (e.g., BART Police, University of California Police) be eligible to receive money deposited into the county DNA Identification funds?
Yes. Any law enforcement agency involved in implementing DNA Data Base laws should seek reimbursement for DNA-related expenses from the county/counties in which those expenses are incurred.
How are funding issues to be addressed at the local level?
The statute provides for establishment of a fund under the control of the county, into which a percentage of criminal fines and penalties are deposited. While some of this money is transferred to the State, $.075 for every $10 of fine or penalty is retained for reimbursement of local expenses. The statute authorizes a number of uses for the money, including DNA collection, processing, tracking, analysis, and storage. It is up to local agencies to agree on apportionment of these funds.
What safeguards exist to ensure that the county law enforcement and local DNA crime labs get funds?
None, other than the statutory mandate that a certain percentage of funds collected at the county level are to be used "to reimburse local sheriff or other law enforcement agencies" for collection expenses. (Govt. Code, § 76104.6(b)(3).)
How will sample collection costs be reimbursed?
Because the statute provides local agency funding that includes the cost of collections and because the buccal swab collection mechanism (as the primary means of collection) is specifically designed to reduce the cost of collection, DOJ will no longer reimburse local agencies for collections after implementation of buccal collection in that jurisdiction, estimated to be no later than February 2005. DOJ will continue to fund reimbursements until the existing blood/saliva kits are replaced, training has been conducted with DOJ and buccal kit collection is in place in that county or agency.
Will DOJ continue to reimburse for the cost of collecting a required, supplemental blood sample once buccal collections begin?
No. Although DOJ has continued to provide blood collection kits free of cost on an "as-needed" basis, DOJ no longer reimburses agencies for any collection costs. The county portion of the DNA fund is intended to cover these costs.
How do DOJ’s various identification databases, including its fingerprint database, identify arrestees?
DOJ’s databases work together and in parallel to fully identify an arrestee, which includes any link between the arrestee and criminal offenses. At booking, fingerprints, photographs, palm prints and DNA samples are collected in order to best identify adult felony arrestees for this purpose.
With respect to fingerprints, at booking a law enforcement officer takes digitally scanned fingerprints from an arrestee using a Livescan booking terminal, and sends these prints electronically to the California Department of Justice (DOJ), where the prints are biometrically searched by the Department's Automated Fingerprint Identification System (AFIS) and verified by reference to an individual's existing prints in the system, if such prints are in the system. If existing prints are in the system, AFIS returns the verification with the name of the individual and his/her State Identification Number (SID) so that the submitting agency can run the SID to determine the individual's full criminal history record.
If there is no identification confirmation of the arrestee to prior prints, the fingerprint images are automatically added to the State's ALPS (Automated Latent Prints System) division of the AFIS for identification of the arrestee through search/comparisons to latent prints from unsolved crimes.
Statistics from the AFIS searches of booking prints in 2010 and 2011 show that of the 1,497,770 booking prints submitted, 70% were hit in 2010, and of the 1,415,708 booking prints submitted in 2011, a similar 74% hit rate was observed. Thus, 26-30% of booking print submissions do not match existing prints at the time of submission, a number echoed by the FBI statistics reported for FY 2010 where about 28% of arrested individuals did not already have fingerprints on file in the FBI Criminal Masterfile.
If a new incoming set of booking prints meets the threshold for similarity to an unsolved crime scene print, then those sets of prints are analyzed manually in a side-by-side comparison. If the latent print analyst determines from a visual on-screen comparison that there is enough similarity between the prints, then the analyst will pull the case folder and do a detailed print comparison and evaluation.
Depending on the quality of prints, it typically can take two days or more for a report to be issued to the law enforcement agency submitting the prints in the case of a confirmed hit identification between booking prints and unsolved crime scene prints. (For latent print hits, a complete evaluation includes a verification examination, a report, a report review, a technical review, and an administrative review.) The report informs the law enforcement agency about the hit between the arrestee and the unsolved crime scene prints.
In addition, new incoming latent prints from unsolved crimes are routinely searched against arrestee booking prints, regardless of the arrest disposition (e.g., whether or not the arrestee ultimately was convicted of the offense) in the Automated Latent Print System (ALPS) database.
Other DOJ databases also are used in parallel to help fully identify adult felony arrestees. DOJ compares the forensic identification DNA database sample taken at booking from an adult felony arrestee to the available CAL-DNA databases of unsolved crime scene evidence to determine whether an arrestee’s booking DNA sample matches DNA evidence profiles of record.
Likewise, databases, such as the palm print database, are used for identification comparisons to palm prints from unsolved crimes. Palm prints are collected at booking pursuant to the DNA database law. (See Cal.Pen.Code, § 296(a), 296.1 subd.(a)(1)(A).)
What were the effects on submissions and hits of the January 1, 2009 implementation of Proposition 69’s provision requiring the collection of DNA samples from all adult felony arrestees?
The collection of forensic identification DNA samples from adult felony arrestees at booking is a vital law enforcement tool. Collecting forensic identification DNA database samples from offenders at felony arrest, rather than after conviction has more than doubled the crime-solving efficacy of California’s database program. In 2009, the average DNA sample submission rate increased to about 26,500 per month, or about a 120% increase over the average in 2008 of about 12,000 per month. In addition, the average number of monthly hits increased 51% from 183 per month in 2008 to about 280 in 2009. While the number of submissions had started to decrease by 2010, as expected, due to the impact of recidivism, the average for 2010 was still nearly 20,500 DNA samples per month. Nevertheless, the number of hits made per month continued to increase to an average of 360 per month in 2010, a 97% increase over the average number of hits made per month in 2008. In the 13 month period from July 1, 2010 through July 31, 2011, the rate had increased to 414 hits per month, more than 125% over the monthly rate in 2008. This 13- month period included two record months for hits, with 625 hits in December 2010 and 501 in June 2011. From April 1, 2012 to December 1, 2012, California’s database program averaged more than 430 hits per month. By December 1, 2012, California’s database program has aided twice as many investigations (18,526) in the last four years since arrestee DNA collection began in January 2009, as it did in the preceding 25 years combined (8,307) using its then-existing convicted offender DNA databases. (See updated chart: Investigations Aided by CAL-DNA Trends 12-21-2012, pdf.) To date, 341 hits to California Arrestees have solved crimes, generally violent crimes, in 40 other states.
Most of DOJ’s hits are to sexual assault cases and other violent crime. The implementation of Proposition 69's mandate to augment the standard booking process with forensic identification DNA sample collection at adult felony arrest has allowed DOJ to make great strides in identification verification, culminating in a substantial reduction in the number of previously unsolved crimes. (See also Prop 69 Training Dates and Locations, pdf.) Beyond the fact that DNA profiles can and have resolved conflicts in fingerprint and criminal history data resulting from manual data entry or manual print confirmations (even on Live Scan submissions), the analysis and searching of arrestee and offender DNA continues to solve well over half of the forensic DNA cases submitted to CAL-DNA.
Immediately prior to January 2009, when California began collecting DNA samples from all adult felony arrestees, California’s convicted offender DNA database program cleared or aided the investigation of about 35 percent of the unsolved DNA cases submitted to it. With the advent of DNA database sample collection from felony arrestees, that clearance and investigations aided rate rose to 67.9 percent by November 30, 2012. This has translated to an increase in more than 14,800 matches between unsolved crimes and offender profiles and over 18,500 investigations aided since January 1, 2009. Of the 27,302 unsolved California case DNA profiles added between January 1, 2009, and December 1, 2012, California’s DNA database program has aided in the investigation of over 50 percent of those cases.
Forensic identification DNA profiles from adult arrested for a nonviolent felony offense often aid the investigation into an otherwise suspectless violent crime. For example:
The recent 2012 case of Sierra LaMar -- the 15-year-old Santa Clara County teenager abducted on her way to school -- is another example of the value of DNA samples taken at arrest. In this case, there were no credible investigative leads until DNA from crime scene evidence matched a forensic identification DNA database sample taken from Antolin Garcia-Torres at a prior (dismissed) felony arrest. The DNA sample match, enabling the surveillance of Garcia-Torres, became law enforcement's best hope of finding Sierra LaMar alive. The DNA match to Garcia-Torres also led to the recovery of important case evidence in Garcia-Torres’ car that otherwise probably would have been destroyed. (See Garcia-Torres - Sierra Lamar abduction, pdf).
Collecting DNA samples at arrest also have helped to bring closure to victim families. An arrestee sample from Shelby Glenn Shamblin recently solved the 1980 rape and murder of sixty-seven year-old Elizabeth Crossman. In 2002, police in Hemet, California submitted vaginal swabs from the crime for analysis and upload to the federally administered Combined DNA Index System (CODIS), but no DNA match resulted. In October 2010 Shelby Glenn Shamblin was arrested for felony drug possession and submitted a required DNA database sample at booking. Shamblin’s DNA was matched to the semen samples from the 1980 Crossman homicide two months after Shamblin had been granted diversion on the 2010 drug offenses. Though Shamblin had done odd jobs for the Crossmans and was interviewed as part of the initial investigation, there had been insufficient evidence linking him to the 1980 crime. Between the 1980 murder and his 2010 drug arrest, Shamblin had been arrested in 1988 and 1989 on drug crimes that today would require a DNA sample at booking in California. Shamblin was convicted of misdemeanor offenses in those cases, and has no felony convictions of record. Following the 2010 DNA match, Shamblin’s diversion was terminated. He is now scheduled to stand trial on both the drug case and the murder case in 2013.
The California District Attorneys Association's amicus brief filed in federal court in Haskell v. Brown (9th Cir. 2012) 669 F.3d 1049 (Ninth Circuit, Case No. 10-1512, ID 9296868, Dkt Entry 19-1) also documents some cases. (See also Prop 69 Training Dates and Locations, pdf.) Likewise, DNA from arrestees has helped to better identify arrestees in terms of criminal activity nationwide. (See Michael Elijah Adams Case Summary 2012, pdf.
*Submissions note: There was a significant decline in sample submissions from August 2011-March 2012, as a result of the now depublished Court of Appeal Aug. 4, 2011, opinion in People v. Buza [finding Proposition 69 DNA database sample collection from adult felony arrestees unconstitutional]. Submissions dropped from the pre-Buza average submission rate of 17,763 a month, to as low as 7,398 in October 2011. (See e.g., attached table: Buza Effects Table, pdf and attached graphic: Arrestee vs CO submissions since 2009, pdf.) .) In May 2012, after submissions increased back to near pre-Buza levels, CAL-DNA recorded 490 hits.
The decline in arrestee DNA database sample submissions as a result of Buza impacted the continuation of January- July 2011 hit trends. Although the Buza opinion was depublished on October 19, 2011, when the California Supreme Court granted the Attorney General’s petition for review, and cannot be cited or relied upon by state courts (Cal. Rules of Court, rule 8.1105 (e); 8.1115(a)), it took months for many local agencies to resume their apparatus for DNA database sample collection from adult felony arrestees, once they halted collection. December 2011 saw the greatest decline in hits, as a result of low sample collection in October/November 2011. In addition, in parts of 2011 and 2012 DOJ’s sample processing was temporarily slowed while DOJ transitioned to new instrumentation and typing systems. However, because the CAL-DNA Data Bank was able to work on a back log of previously unresolved samples (rechecking qualifying information for sample's inclusion in the database, etc.) at the same time that arrestee sample receipt fell precipitously, the absolute hit totals did not fall all the way to pre-2009 levels (then averaging about 183 hits per month).
*Note on turn around time: While the average turn-around time for the first analysis of arrestee samples from 2009 to 2011 was 33 days or less (29 days for arrestee samples submitted and matched in 2011), DOJ can cite 134 cases in that period where arrestee sample analysis was completed within 5 calendar days (42 in less than 2 days), which were then matched to past or on-going investigations, including: an offender typed in 13 days and matched to a profile from a 2008 homicide 17 days after the submission of the sample, another typed in 12 days and matched to a 2003 homicide 47 days after submission of the arrestee sample (still long before the arrestee’s case would have been adjudicated), and 3 sexual assault cases where the arrestee was analyzed and matched within 9-18 days to the crime scene evidence from cases in 1995, 2003, and 2009, respectively.
Several approaches have now been identified that could provide DNA typing results within several hours of collection at a booking station. A recent National Institutes of Standards poster presented by Dr. Erika Butts to the 2012 International Symposium on Human Identification in Nashville noted that: "STR genotype results were generated in less than 2 hours with standard laboratory equipment and protocols. The validation of Direct PCR STR kits or Fast PCR protocols will allow a forensic lab to have 'Rapid DNA' capabilities." (See www.cstl.nist.gov/div831/strbase/pub_pres/Butts-ISHI2012-Rapid-DNA.pdf.) In addition, “Rapid DNA Profiling Systems” have now been developed and delivered for evaluation testing by a US Government consortium (including the FBI) by three vendors. These systems provide typing results from offenders within two hours of collection. (See www.networkworld.com/news/2011/092911-biometrics-rapid-dna-251414.html. For the 18-month development program, see also Biometrics and Forensics Summit 2010, pdf.) Such systems, when implemented over the next 3-5 years, are intended to provide DNA typing results within hours of the arrest of an offender and allow matching of that offender’s DNA to existing DNA evidence profiles for unsolved crimes or DNA profiles on “John Doe” warrants. (See also Chris Asplen, 2012.)
Are DNA sample profiles also used to resolve discrepancies in criminal history identification records?
Yes. CAL-DNA has calculated that from 2009 to 2011 nearly 5000 submissions required resolution because they were submitted to the DOJ laboratory under the same name and Criminal Identification Index (CII) number, but were determined by the lab to have different DNA profiles when analyzed. Further research between databases permitted resolution of problems due to occurrences such as sample switches that occurred at the time of collection, or due to agency misassociation of a CII number with a particular individual with a common name. When poor quality "booking" prints are submitted, but not recognized as coming from the same person, two different CII's with separate criminal history records may be generated. This can result in two or even three CII numbers being assigned to the same individual. CAL-DNA recognizes examples of this situation weekly, when resolving conflicting information on submissions or when the CII and full name submitted do not properly update a DNA collection flag on an Automated Criminal History record. As do other agencies, when CAL-DNA recognizes this situation the laboratory makes a request to have these CII numbers consolidated. DNA database samples at arrest help to more quickly recognize incorrect entries and improve the quality of the State's identifications of offenders, including a clear link to the proper criminal history information, including outstanding arrest warrants.
What is CODIS?
CODIS is the acronym for the “Combined DNA Index System” and in relation to the CAL-DNA Data Bank Program refers primarily to the software implemented by the FBI nationally to run criminal justice DNA databases. The term is also used generically to describe the FBI’s program of support for these DNA databases. The National DNA Index System or NDIS is the national level of the CODIS program. The CAL-DNA Data Bank manages what is known within the CODIS system as a State DNA Index System or SDIS, that manages and searches approved DNA profiles from local California NDIS participating forensic laboratories, also known as Local DNA Index Systems or LDIS labs. Participation in NDIS, as specified in state and federal statutes, allows for the collection and searching of authorized DNA crime scene evidence and reference (e.g., offender and arrestee) profiles contributed by federal, state, and local participating forensic laboratories. The FBI has a basic brochure describing the CODIS System; see www.fbi.gov/about-us/lab/codis/codis_brochure/.
What is the “Next Generation” of CODIS Software and what will it do?
The “Next Generation CODIS” software has been fielded by the FBI and is currently in use in the CAL-DNA Data Bank Program. Software enhancements to search and analysis capacities permit the implementation of a more efficient search engine designed to reduce the time required to search the increased size of the database. The implementation of CODIS 7.0 and this search capability has reduced the length of the routine weekly CAL-DNA database search from 12 hours to less than two. “Incremental searching” allows for the searching of a profile against only the new increment of a database, so as not to waste time repeating a search of profiles already searched, matched, or eliminated via the routine search comparisons. CODIS software continues to include tools for performing statistical calculations. The upgraded version assists DNA analysts to perform the statistics required by the courts in a consistent manner, using the same ethnic group databases and same formulas, including the likelihood ratio calculations not routinely used in the United States. The “partial profile indicator” is likewise a long-term existing function of CODIS and refers to the field associated with an evidence profile that notifies any individual reviewing a hit that the profile is an interpreted profile from a mixture profile, from a sample subject to decomposition, or otherwise not a complete DNA profile from a single individual. The term has nothing to do with the popularly phrased “partial matches” or with familial searching. The CODIS 7.0 software was not designed for familial searching -- that is the capability to perform searches directed at finding DNA profiles that do not match exactly to the crime scene evidence, but that are sufficiently close as to create the probability that the perpetrator is a relative of someone in the DNA database. The FBI specifically has not developed or implemented software that would perform familial searching. See FBI FAQ. Other CODIS upgrades include enhancements to support missing persons analysis and comparisons to assist in the identification of sometimes badly decomposed unidentified remains.
What information can be determined from the DNA profiles in CAL-DNA and CODIS?
No visualization of an entire genome occurs. Analysis of the 13 CODIS core loci involves approximately 1/16,666 of one percent (0.0006%) of a person’s DNA, with tests for only non-coding DNA sites. See John M. Butler, Fundamentals of Forensic DNA Typing 6 (2010): ["Out of more than 6 billion nucleotides present in the diploid human genome, fewer than 4000 nucleotides, or 0.0006% of the material, are examined from highly variable and nondescript regions"]. Some persons have nonetheless mistakenly suggested that forensic identification DNA testing reveals a treasure trove of genetic information. This is incorrect. Only identification information is obtained. (See e.g., John M. Butler, Advanced Topics in Forensic DNA Typing: Methodology 228 (2012): ["STR markers used for human identity testing do not predict disease"]; John M. Butler, Fundamentals of Forensic DNA Typing 279 (2010): ["[T]he DNA markers, such as the 13 CODIS core STR loci, are in noncoding regions of the DNA and are not known to have any association with a genetic disease or any other genetic predisposition."]; David H. Kaye & George Sensabaugh, Reference Guide on DNA Evidence, in Reference Manual on Scientific Evidence 129, 141 (3d ed. 2011): ["STR sequences do not code for proteins, and the ones used in identity testing convey little or no information about an individual’s propensity for disease."]; Sara H. Katsanis and Jennifer K. Wagner, (2012), Characterization of the Standard and Recommended CODIS Markers, Journal of Forensic Sciences. doi: 10.1111/j.1556-4029.2012.02253.x/pdf: ["This study provides clarification... --independent of the forensic scientific community—-that the CODIS profiles provide identification but not sensitive or biomedically relevant information."] or Katsanis and Walker 2012, pdf; see also Katsanis, S. H.(2012) "Letter to the Editor—-Out with the 'Junk DNA' Phrase" J Forensic Sci, 2012 doi: 10.1111/j.1556-4029.2012.02252.x: ["It is also appropriate to warn nonscientists that to imply the CODIS loci are each or collectively involved in gene expression and are now important for a wide array of traits and conditions of biomedical relevance is unfounded."] [onlinelibrary.wiley.com/doi/10.1111/j.1556-4029.2012.02252.x/pdf or Katsanis JFS Ltr to Editor 2012, pdf]; SWGDAM Executive Board Considerations for Claims that the CODIS Core Loci are 'Associated' with Medical Conditions/Diseases at www.swgdam.org/ at News and Updates/Publications: ["The 13 core loci were selected as law enforcement markers to be used for identification purposes only."]; United States v. Kincade (9th Cir. 2004) 379 F.3d 813, 817-820 [recognizing core CODIS loci "were purposely selected because they are not associated with any known physical or medical characteristics"; H.R. Rep. No. 106-900(I) at *27...]
Concern also has been expressed about the potential for misuse of a DNA database, like CAL-DNA and CODIS, to reveal private information such as predisposition to disease to sexual orientation. In the first instance, this concern overlooks the fact that the State is precluded from obtaining any "sensitive" information, and is authorized by law to obtain only identification information. California's DNA Act specifically contains stringent use and disclosure restrictions and confidentiality protections for DNA samples and profile information. (See e.g., Cal. Pen. Code, § 299.5.) In addition, any individual who uses a sample or DNA profile for any purpose other than criminal identification, or the identification of missing persons, or who discloses the sample or DNA profile to an unauthorized person, faces "imprisonment in the state prison." (§ 299.5 subd. (i)(1)(A).) Any DOJ employee who misuses or improperly discloses a sample or DNA profile is subject to a fine of up to $50,000 plus attorney’s fees and costs. (§ 299.5 subd. (i)(2)(A).) These restrictions are reinforced by similar confidentiality restrictions and federal penalties applicable to California by virtue of its participation in CODIS. (See 42 U.S.C. § 14132 et seq.; see also 61 Fed. Reg. 37497 (July 18, 1996) ["[C]riminal justice agencies with direct access to CODIS must agree to... restrict access to DNA samples and data."].) Law enforcement access to CODIS may be canceled for failure to meet the quality control and privacy requirements of federal law. (See, 42 U.S.C. §§ 14132(c), 14135e(c).)
In addition, though some commentators have gone so far as to suggest that the scientific community has found particular disease associations with the CODIS Core loci in the general population, this represents a misunderstanding of the literature and the genetic loci involved. (See e.g., above.)
Although forensic STR markers may be used to identify locations in the human genome that contain disease-causing genes, this use is limited to family lineages, and requires detailed medical information about subjects in conjunction with these STR test results. Specifically, when STR markers are used in this manner, it requires a comparison of the STR types of at least several known family members along with knowledge of their disease status. Across the family pedigree, if everyone who has the disease also has a particular allele at STR locus "A", but no association is seen with any alleles at STR locus "B", then the disease-causing gene is more likely to be located near locus "A" in the genome of the affected family members. With an evidence (forensic unknown) or randomly selected individual's STR profile, however, nothing is known about the disease status of the donor, and there is no a priori knowledge whether a disease-causing variant of a gene is linked to one of the alleles carried by that donor's family. Therefore, there is no predictive knowledge of the disease status of that donor's relatives, despite knowing what diseases have been reported to be associated with the tested loci in specific families.
If an STR marker is located within the DNA region of a functional gene, then that STR is by definition associated with that gene. Because of the location of such STR markers in what are known as "non-coding" regions or introns, the variation in STR sequence is not reflected in the protein product of such genes. Consequently, location within these genes does not necessarily mean that a particular STR length variant (allele) is predictive of a disorder associated with that gene.
In other words, in order to do disease-predictive studies of the type seen within the scientific literature, an investigator would need to have a DNA sample from all of the relevant family members and know that one member carries the disease, a situation that does not occur in typical criminal investigations. Moreover, and most significantly, no literature has shown that the STR-related predictors within a family are also predictors outside that family or predictors relevant to the general population (or definitive even within a family as to all of its members). Accordingly, concerns about disease association and the CODIS core loci reflect a misunderstanding of genetic principles and of the scientific literature.
See also e.g., Butler, Advanced Topics in Forensic DNA Typing: Methodology (2012) pp. 228-229; Reference Manual on Scientific Evidence [as of July 10, 2012]; Benecke, Coding or Non-Coding, That is The Question (2002) 3 EMBO Reports No.6, pp. 498-502: ["Abuse of such information is impossible because it simply has no practical predictive value."].