CS/HB 1151

1
A bill to be entitled
2An act relating to a DNA database; providing a short
3title; amending s. 943.325, F.S.; providing legislative
4intent; providing definitions; providing a phase-in
5schedule whereby persons arrested for specified felony
6offenses will be required to provide DNA samples to the
7Department of Law Enforcement until all persons arrested
8for felony offenses will be required to provide such
9samples; requiring reports; providing for a statewide
10automated personal identification system capable of
11classifying, matching, and storing analyses of DNA and
12other data; providing for access; specifying duties of the
13department; providing that the database may contain DNA
14for certain types of samples; specifying offenders from
15whom DNA is to be collected; authorizing the use of
16reasonable force to collect samples; providing an
17exemption from liability for use of such force; providing
18for collection of samples from specified offenders from
19out of state; requiring the department to provide sample
20containers; providing requirements for information to be
21submitted with each sample; providing for court orders for
22samples; authorizing prosecutors to seek court orders in
23certain circumstances; providing that a convicted person
24shall pay the actual costs of collecting the approved
25biological specimens unless declared indigent; providing
26that certain failures to strictly comply with statute or
27protocol may not provide grounds for challenging the
28validity of the collection or the use of a DNA sample in
29court and evidence based upon or derived from the
30collected DNA sample may not be excluded by a court;
31providing that the detention, arrest, or conviction of a
32person based upon a database match or database information
33will not be invalidated if it is later determined that the
34sample was obtained or placed in the database by mistake;
35providing for retention of samples; providing for analysis
36of samples; requiring that DNA analysis and the comparison
37of analytic results shall be released only to criminal
38justice agencies; providing a public records exemption for
39such information; prohibiting willfully refusing to
40provide a DNA sample; providing penalties; prohibiting
41specified offenses relating to disclosing DNA records,
42using records without authorization, or tampering with DNA
43samples or analysis results; providing penalties;
44providing for removal of records in certain circumstances;
45requiring rulemaking; amending ss. 760.40 and 948.014,
46F.S.; conforming provisions to changes made by this act;
47providing an effective date.
48
49Be It Enacted by the Legislature of the State of Florida:
50
51     Section 1.  This act may be cited as the "DNA Database
52Act."
53     Section 2.  Section 943.325, Florida Statutes, is amended
54to read:
55(Substantial rewording of section. See
56s. 943.325, F.S., for present text)
57     943.325  DNA Database.--
58     (1)  LEGISLATIVE INTENT.--
59     (a)  The Legislature hereby finds that DNA databases are
60important tools in criminal investigations, in the exclusion of
61individuals who are the subject of criminal investigations or
62prosecutions and in detecting recidivist acts. It is the policy
63of this state to assist federal, state, and local criminal
64justice and law enforcement agencies in the identification and
65detection of individuals in criminal investigations and the
66identification and location of missing and unidentified persons.
67Therefore, it is in the best interests of the citizens of this
68state to establish a statewide DNA database containing DNA
69samples submitted by persons convicted of or arrested for felony
70offenses and convicted of certain misdemeanor offenses.
71Additionally, the statewide DNA database shall include DNA
72records and samples necessary for the identification of missing
73persons and unidentified human remains, including DNA samples
74voluntarily contributed by relatives of missing persons.
75     (b)  The Legislature also finds that upon establishment of
76the Florida DNA database a match between casework evidence DNA
77samples from a criminal investigation and DNA samples from a
78state or federal DNA database of certain offenders may be used
79to find probable cause for the issuance of a warrant to obtain
80the DNA sample from an offender.
81     (2)  DEFINITIONS.--As used in this section, the term:
82     (a)  "Arrested" means apprehended or physically taken into
83custody, resulting in the submission of arrest fingerprints to
84the department, pursuant to s. 943.051.
85     (b)  "CODIS" means the Federal Bureau of Investigation's
86Combined DNA Index System that allows the storage and exchange
87of DNA records submitted by federal, state, and local forensic
88DNA laboratories.
89     (c)  "Convicted" means a finding of guilt by a court of
90competent jurisdiction, or entry of a plea of nolo contendere or
91guilty, or, in the case of a juvenile, the finding of
92delinquency, regardless of adjudication.
93     (d)  "DNA" means deoxyribonucleic acid. DNA is located in
94the cells and provides an individual's personal genetic
95blueprint. DNA encodes genetic information that is the basis of
96human heredity and forensic identification.
97     (e)  "DNA record" means all information associated with the
98collection and analysis of a person's DNA sample, including the
99distinguishing characteristics collectively referred to as a DNA
100profile.
101     (f)  "DNA sample" means a buccal or other approved
102biological specimen capable of undergoing DNA analysis.
103     (g)  "Qualifying offender" means any person, whether a
104juvenile or an adult, who is:
105     1.a.  Committed to a county jail;
106     b.  Committed to or under the supervision of the Department
107of Corrections, including persons incarcerated in a private
108correctional institution operated under contract pursuant to s.
109944.105;
110     c.  Committed to or under the supervision of the Department
111of Juvenile Justice;
112     d.  Transferred to this state under the Interstate Compact
113on Juveniles, part XIII of chapter 985; or
114     e.  Accepted under Article IV of the Interstate Corrections
115Compact, part III of chapter 941; and
116     2.a.  Convicted of any felony offense or attempted felony
117offense in this state or of a similar offense in another
118jurisdiction;
119     b.  Convicted of a misdemeanor violation of s. 784.048, s.
120810.14, s. 847.011, s. 847.013, s. 847.0135, or s. 877.26, or an
121offense that was found, pursuant to s. 874.04, to have been
122committed for the purpose of benefiting, promoting, or
123furthering the interests of a criminal gang as defined in s.
124874.03; or
125     c.  Arrested for any felony offense or attempted felony
126offense in this state.
127     (3)  REQUIREMENT TO SUBMIT.--
128     (a)  Each qualifying offender shall submit a DNA sample as
129required in subsection (7).
130     (b)  DNA samples collected under paragraph (a) from persons
131arrested for any felony offense or attempted felony offense in
132this state are subject to sufficient funding appropriations
133being approved by the Legislature and becoming law according to
134the following schedule:
135     1.  Beginning January 1, 2011, all felonies defined by
136chapters 782, 784, 794, and 800.
137     2.  Beginning January 1, 2013, all felonies defined by
138chapters 810 and 812.
139     3.  Beginning January 1, 2015, all felonies defined by
140chapters 787 and 790.
141     4.  Beginning January 1, 2017, all felonies defined by
142chapter 893.
143     5.  Beginning January 1, 2019, all remaining felony
144offenses.
145
146The department may reject DNA samples submitted pursuant to this
147subsection if submitted before the funding of any phase or if
148received before the department issues an official notification
149to the submitting agency that the department is sufficiently
150prepared to receive the samples.
151     (c)  On or before February 1, 2010, and by February 1 of
152each even-numbered year thereafter through 2018, the department
153shall submit a report to the Legislature listing the funding,
154infrastructure, facility, and personnel requirements necessary
155to operate the DNA database and DNA evidentiary analysis for the
156expansion phase scheduled for the following year.
157     (4)  STATEWIDE DNA DATABASE.--The department, through the
158statewide criminal laboratory analysis system shall establish,
159implement, and maintain a statewide automated personal
160identification system capable of, but not limited to,
161classifying, matching, and storing analyses of DNA and other
162biological molecules and related data. The department shall be
163the administrator of the statewide DNA database. All accredited
164local government crime laboratories within the state shall have
165access through CODIS to the statewide DNA database in accordance
166with the rules and agreements established by the department.
167     (5)  DUTIES.--The department shall:
168     (a)  Receive, process, and store DNA and the data derived
169therefrom furnished pursuant to this section.
170     (b)  Collect, process, maintain, and disseminate
171information and records as provided by this section.
172     (c)  Strive to maintain and disseminate only accurate and
173complete records.
174     (d)  Participate in the national DNA database program
175administered by the Federal Bureau of Investigation.
176     (e)  Provide for liaison with the Federal Bureau of
177Investigation and other criminal justice agencies relating to
178the state's participation in the CODIS program and the national
179DNA index system.
180     (f)  Adopt rules specifying the proper procedure, including
181requisite identification information, for state and local law
182enforcement and correctional agencies to collect and submit DNA
183samples pursuant to this section.
184     (6)  SAMPLES.--The statewide DNA database may contain DNA
185data obtained from the following types of biological samples:
186     (a)  Crime scene samples.
187     (b)  Samples obtained from qualifying offenders required by
188this section to provide a biological sample for DNA analysis and
189inclusion in the statewide DNA database.
190     (c)  Samples lawfully obtained during the course of a
191criminal investigation.
192     (d)  Samples from deceased victims or suspects that were
193lawfully obtained during the course of a criminal investigation.
194     (e)  Samples from unidentified human remains.
195     (f)  Samples from persons reported missing.
196     (g)  Samples voluntarily contributed by relatives of
197missing persons.
198     (h)  Other samples approved by the department.
199     (7)  COLLECTION OF DNA SAMPLES FROM OFFENDERS.--
200     (a)  Any qualifying offender, who is:
201     1.  Arrested in this state,
202     2.  Incarcerated in this state, or
203     3.  On probation, community control, parole, conditional
204release, control release, or any other type of court-ordered
205supervision in this state,
206
207shall be required to submit a DNA sample to a department-
208designated facility.
209     (b)  Arrested qualifying offenders must submit a DNA sample
210at the time they are booked into a jail, correctional facility,
211or juvenile facility.
212     (c)  Incarcerated persons and those in the custody of the
213Department of Juvenile Justice must submit required DNA samples
214not less than 45 days before their presumptive date of release
215from such incarceration or commitment.
216     (d)  Upon the conviction of any qualifying offender which
217results in the commitment of the offender to a county jail,
218correctional facility, or juvenile facility, the entity
219responsible for the jail or facility shall ensure that a DNA
220sample is promptly secured and transmitted to the department.
221Personnel at the jail, correctional facility, or juvenile
222facility shall collect the DNA samples as part of the regular
223processing of qualifying offenders committed to the jail or
224facility.
225     (e)  If a qualifying offender is not incarcerated following
226conviction, that offender may not be released from the custody
227of the court at the time of sentencing or released pursuant to a
228bond or surety until the DNA sample required by this section has
229been taken by the sheriff or his or her designee. The sheriff
230shall secure, process, and transmit the DNA sample to the
231department in a timely manner.
232     (8)  REASONABLE FORCE.--Duly authorized law enforcement and
233corrections personnel may employ reasonable force in cases where
234a qualifying offender refuses to provide a DNA sample required
235under this section, and no such employee shall be civilly or
236criminally liable for the use of such reasonable force.
237     (9)  OUT-OF-STATE OFFENDERS.--Any qualifying offender who
238is:
239     (a)  Transferred to this state under the Interstate Compact
240on Juveniles, part XIII of chapter 985, for a felony offense or
241attempted felony offense, or
242     (b)  Accepted under Article IV of the Interstate
243Corrections Compact, part III of chapter 941, for a felony
244offense or attempted felony offense,
245
246shall provide a DNA sample pursuant to this section to the
247entity responsible for supervision of the offender, who shall
248ensure that the DNA sample is collected in a manner approved by
249the department and promptly secured and transmitted to the
250department.
251     (10)  COLLECTION; LIABILITY.--
252     (a)  The collection of DNA samples may be performed by any
253person using a collection kit approved by the department as
254directed in the kit or pursuant to other procedures approved by
255or acceptable to the department.
256     (b)  Any person who collects or assists in the collection
257of a DNA sample is not civilly or criminally liable if a
258collection kit provided or approved by the department is used
259and the collection is done as directed in the kit, in a manner
260approved by the department, or is performed in an otherwise
261reasonable manner.
262     (11)  SAMPLE SUBMISSION.--The department will provide the
263DNA sample collection kits, labels, or other appropriate
264containers and instructions for the collection of the DNA
265samples. After collection, the DNA samples shall be forwarded to
266the department for analysis to determine genetic markers and
267characteristics for the purpose of individual identification of
268the person submitting the sample.
269     (a)  At minimum, the following information must be included
270with each submission:
271     1.  The qualifying offender's last name, first name, date
272of birth, race, gender, and State Identification (SID) number if
273known.
274     2.  The statute number of each offense charged.
275     3.  The collecting agency's name and address.
276     4.  The name and telephone number of the person performing
277the collection of the DNA sample or witnessing the collection of
278the sample.
279     (b)  If a DNA sample submitted to the department under this
280section cannot be used by the department in the manner and for
281the purposes required by this section, the department may
282require that another DNA sample be obtained.
283     (12)  COURT ORDERS; COSTS.--The sentencing court shall
284include in the judgment order for a qualifying offender a
285provision requiring collection of a DNA sample from the
286defendant in a manner consistent with this section.
287     (a)  Unless a convicted person has been declared indigent
288by the court, the convicted person shall pay the actual costs of
289collecting the approved biological specimens required under this
290section.
291     (b)  If the order of a sentencing court fails to order a
292qualifying offender to submit a DNA sample as mandated by this
293section, the prosecutor may seek an amended order from the
294sentencing court requiring submission of a DNA sample in
295compliance with this section. In the alternative, the
296department, the Department of Corrections, a law enforcement
297agency, or a prosecutor may apply to the appropriate circuit
298court with jurisdiction for an order authorizing the seizure of
299the qualifying offender for the purpose of securing the required
300DNA sample.
301     1.  The court shall issue the order upon a showing of
302probable cause.
303     2.  Following issuance of the order, the DNA sample shall
304be collected in a reasonable manner and the qualifying offender
305shall be released unless there is cause to justify retaining the
306offender in custody.
307     (c)  Failure by a law enforcement agency or other entity
308involved in collection of DNA samples under this section to
309strictly comply with this section or to abide by a statewide
310protocol for collecting DNA samples is not grounds for
311challenging the validity of the collection or the use of a DNA
312sample in court and evidence based upon or derived from the
313collected DNA sample may not be excluded by a court.
314     (d)  The detention, arrest, or conviction of a person based
315upon a database match or database information will not be
316invalidated if it is later determined that the sample was
317obtained or placed in the database by mistake.
318     (e)  All DNA samples submitted to the department for any
319reason shall be retained in the statewide DNA database and may
320be used for all lawful purposes as provided in this section.
321     (13)  ANALYSIS OF DNA SAMPLES.--
322     (a)  The department shall specify procedures for the
323collection, submission, identification, analysis, storage, and
324disposition of the DNA samples and DNA records collected under
325this section. These procedures shall also ensure compliance with
326national quality assurance standards so that the DNA records may
327be accepted into the national DNA database.
328     (b)  The analyses of DNA samples collected under this
329section shall be used only for law enforcement identification
330purposes or to assist in the recovery or identification of human
331remains or missing persons and may not be used for
332identification of any medical or genetic condition.
333     (c)  When completed, the results of DNA analysis shall be
334entered into the statewide DNA database maintained and
335administered by the department for such purpose, as provided in
336this section.
337     (14)  RESULTS.--The results of a DNA analysis and the
338comparison of analytic results shall be released only to
339criminal justice agencies as defined in s. 943.045(10), at the
340request of the agency. Otherwise, such information is
341confidential and exempt from the provisions of s. 119.07(1) and
342s. 24(a), Art. I of the State Constitution.
343     (15)  OFFENSES AND PENALTIES.--
344     (a)  Any person subject to the requirements of this section
345who willfully refuses to provide a DNA sample commits a
346misdemeanor of the second degree, punishable as provided in s.
347775.082 or s. 775.083.
348     (b)  Any person who:
349     1.  Knowingly or intentionally discloses a DNA record,
350including the results of a DNA analysis, to a person or agency
351other than one authorized to have access to such records under
352this section;
353     2.  Knowingly or intentionally uses or receives DNA
354records, including the results of DNA analysis, for purposes
355other than those authorized under this section; or
356     3.  Knowingly or intentionally tampers or attempts to
357tamper with any DNA sample, the result of any analysis of a DNA
358sample, or a DNA sample collection container
359
360commits a felony of the third degree, punishable as provided in
361s. 775.082, s. 775.083, or s. 775.084.
362     (16)  REMOVAL FROM DATABASE.--
363     (a)  Unless the department determines that a person is
364otherwise required by law to submit a DNA sample for inclusion
365in the statewide DNA database, the department shall, upon
366receipt and completion of such verification as may be required
367of the information noted below, promptly remove from the
368statewide DNA database the DNA analysis and any DNA biological
369samples that may have been retained of a person included therein
370on the basis of:
371     1.  A conviction for a qualifying offense specified in
372paragraph (2)(g)2.a. or b., if the department receives, from the
373person seeking removal of DNA information from the statewide DNA
374database, for each qualifying offense, a certified copy of a
375final court order establishing that such conviction has been
376overturned on direct appeal or set aside in a postconviction
377proceeding; or
378     2.  An arrest, if the department receives, from the person
379seeking removal of DNA information from the statewide DNA
380database, for each charge against the person on the basis of
381which the analysis was or could have been included in the
382statewide DNA database, a certified copy of the no information
383or nolle prosequi filed by the state attorney, or final court
384order or other official documentation establishing that such
385charge has been dismissed or has resulted in an acquittal or
386that no charge was filed within the applicable time period.
387
388For purposes of this paragraph, a court order is not final if
389time remains for an appeal or application for discretionary
390review with respect to the order, or if a case has been remanded
391for retrial or other proceedings and has not been resolved after
392remand, or time remains for appeal or discretionary review of
393the remanded case or any other such proceedings that have not
394concluded and rendered the case resolved with finality.
395     (b)  The department shall, by rule, establish the procedure
396by which a person seeking removal of his or her DNA analysis and
397biological sample from the statewide DNA database shall submit
398the certified information required in this subsection to the
399department.
400     Section 3.  Paragraph (a) of subsection (2) of section
401760.40, Florida Statutes, is amended to read:
402     760.40  Genetic testing; informed consent; confidentiality;
403penalties; notice of use of results.--
404     (2)(a)  Except for purposes of criminal prosecution, except
405for purposes of determining paternity as provided in s. 409.256
406or s. 742.12(1), and except for purposes of acquiring specimens
407from persons convicted of certain offenses or as otherwise
408provided in s. 943.325, DNA analysis may be performed only with
409the informed consent of the person to be tested, and the results
410of such DNA analysis, whether held by a public or private
411entity, are the exclusive property of the person tested, are
412confidential, and may not be disclosed without the consent of
413the person tested. Such information held by a public entity is
414exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I
415of the State Constitution.
416     Section 4.  Subsection (1) of section 948.014, Florida
417Statutes, is amended to read:
418     948.014  Requirement to submit to drawing of blood or other
419biological specimens.--
420     (1)  As a condition of probation, community control, or any
421other court-ordered community supervision, the court shall order
422offenders order persons convicted of offenses specified in s.
423943.325 to submit to the drawing of the blood or other
424biological specimens when required under s. 943.325 as
425prescribed in that section as a condition of the probation,
426community control, or other court-ordered community supervision.
427     Section 5.  This act shall take effect July 1, 2009.


CODING: Words stricken are deletions; words underlined are additions.