| 1 | A bill to be entitled |
| 2 | An act relating to a DNA database; providing a short |
| 3 | title; amending s. 943.325, F.S.; providing legislative |
| 4 | intent; providing definitions; providing a phase-in |
| 5 | schedule whereby persons arrested for specified felony |
| 6 | offenses will be required to provide DNA samples to the |
| 7 | Department of Law Enforcement until all persons arrested |
| 8 | for felony offenses will be required to provide such |
| 9 | samples; requiring reports; providing for a statewide |
| 10 | automated personal identification system capable of |
| 11 | classifying, matching, and storing analyses of DNA and |
| 12 | other data; providing for access; specifying duties of the |
| 13 | department; providing that the database may contain DNA |
| 14 | for certain types of samples; specifying offenders from |
| 15 | whom DNA is to be collected; authorizing the use of |
| 16 | reasonable force to collect samples; providing an |
| 17 | exemption from liability for use of such force; providing |
| 18 | for collection of samples from specified offenders from |
| 19 | out of state; requiring the department to provide sample |
| 20 | containers; providing requirements for information to be |
| 21 | submitted with each sample; providing for court orders for |
| 22 | samples; authorizing prosecutors to seek court orders in |
| 23 | certain circumstances; providing that a convicted person |
| 24 | shall pay the actual costs of collecting the approved |
| 25 | biological specimens unless declared indigent; providing |
| 26 | that certain failures to strictly comply with statute or |
| 27 | protocol may not provide grounds for challenging the |
| 28 | validity of the collection or the use of a DNA sample in |
| 29 | court and evidence based upon or derived from the |
| 30 | collected DNA sample may not be excluded by a court; |
| 31 | providing that the detention, arrest, or conviction of a |
| 32 | person based upon a database match or database information |
| 33 | will not be invalidated if it is later determined that the |
| 34 | sample was obtained or placed in the database by mistake; |
| 35 | providing for retention of samples; providing for analysis |
| 36 | of samples; requiring that DNA analysis and the comparison |
| 37 | of analytic results shall be released only to criminal |
| 38 | justice agencies; providing a public records exemption for |
| 39 | such information; prohibiting willfully refusing to |
| 40 | provide a DNA sample; providing penalties; prohibiting |
| 41 | specified offenses relating to disclosing DNA records, |
| 42 | using records without authorization, or tampering with DNA |
| 43 | samples or analysis results; providing penalties; |
| 44 | providing for removal of records in certain circumstances; |
| 45 | requiring rulemaking; amending ss. 760.40 and 948.014, |
| 46 | F.S.; conforming provisions to changes made by this act; |
| 47 | providing an effective date. |
| 48 |
|
| 49 | Be It Enacted by the Legislature of the State of Florida: |
| 50 |
|
| 51 | Section 1. This act may be cited as the "DNA Database |
| 52 | Act." |
| 53 | Section 2. Section 943.325, Florida Statutes, is amended |
| 54 | to read: |
| 55 | (Substantial rewording of section. See |
| 56 | s. 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 |
| 60 | important tools in criminal investigations, in the exclusion of |
| 61 | individuals who are the subject of criminal investigations or |
| 62 | prosecutions and in detecting recidivist acts. It is the policy |
| 63 | of this state to assist federal, state, and local criminal |
| 64 | justice and law enforcement agencies in the identification and |
| 65 | detection of individuals in criminal investigations and the |
| 66 | identification and location of missing and unidentified persons. |
| 67 | Therefore, it is in the best interests of the citizens of this |
| 68 | state to establish a statewide DNA database containing DNA |
| 69 | samples submitted by persons convicted of or arrested for felony |
| 70 | offenses and convicted of certain misdemeanor offenses. |
| 71 | Additionally, the statewide DNA database shall include DNA |
| 72 | records and samples necessary for the identification of missing |
| 73 | persons and unidentified human remains, including DNA samples |
| 74 | voluntarily contributed by relatives of missing persons. |
| 75 | (b) The Legislature also finds that upon establishment of |
| 76 | the Florida DNA database a match between casework evidence DNA |
| 77 | samples from a criminal investigation and DNA samples from a |
| 78 | state or federal DNA database of certain offenders may be used |
| 79 | to find probable cause for the issuance of a warrant to obtain |
| 80 | the DNA sample from an offender. |
| 81 | (2) DEFINITIONS.--As used in this section, the term: |
| 82 | (a) "Arrested" means apprehended or physically taken into |
| 83 | custody, resulting in the submission of arrest fingerprints to |
| 84 | the department, pursuant to s. 943.051. |
| 85 | (b) "CODIS" means the Federal Bureau of Investigation's |
| 86 | Combined DNA Index System that allows the storage and exchange |
| 87 | of DNA records submitted by federal, state, and local forensic |
| 88 | DNA laboratories. |
| 89 | (c) "Convicted" means a finding of guilt by a court of |
| 90 | competent jurisdiction, or entry of a plea of nolo contendere or |
| 91 | guilty, or, in the case of a juvenile, the finding of |
| 92 | delinquency, regardless of adjudication. |
| 93 | (d) "DNA" means deoxyribonucleic acid. DNA is located in |
| 94 | the cells and provides an individual's personal genetic |
| 95 | blueprint. DNA encodes genetic information that is the basis of |
| 96 | human heredity and forensic identification. |
| 97 | (e) "DNA record" means all information associated with the |
| 98 | collection and analysis of a person's DNA sample, including the |
| 99 | distinguishing characteristics collectively referred to as a DNA |
| 100 | profile. |
| 101 | (f) "DNA sample" means a buccal or other approved |
| 102 | biological specimen capable of undergoing DNA analysis. |
| 103 | (g) "Qualifying offender" means any person, whether a |
| 104 | juvenile or an adult, who is: |
| 105 | 1.a. Committed to a county jail; |
| 106 | b. Committed to or under the supervision of the Department |
| 107 | of Corrections, including persons incarcerated in a private |
| 108 | correctional institution operated under contract pursuant to s. |
| 109 | 944.105; |
| 110 | c. Committed to or under the supervision of the Department |
| 111 | of Juvenile Justice; |
| 112 | d. Transferred to this state under the Interstate Compact |
| 113 | on Juveniles, part XIII of chapter 985; or |
| 114 | e. Accepted under Article IV of the Interstate Corrections |
| 115 | Compact, part III of chapter 941; and |
| 116 | 2.a. Convicted of any felony offense or attempted felony |
| 117 | offense in this state or of a similar offense in another |
| 118 | jurisdiction; |
| 119 | b. Convicted of a misdemeanor violation of s. 784.048, s. |
| 120 | 810.14, s. 847.011, s. 847.013, s. 847.0135, or s. 877.26, or an |
| 121 | offense that was found, pursuant to s. 874.04, to have been |
| 122 | committed for the purpose of benefiting, promoting, or |
| 123 | furthering the interests of a criminal gang as defined in s. |
| 124 | 874.03; or |
| 125 | c. Arrested for any felony offense or attempted felony |
| 126 | offense in this state. |
| 127 | (3) REQUIREMENT TO SUBMIT.-- |
| 128 | (a) Each qualifying offender shall submit a DNA sample as |
| 129 | required in subsection (7). |
| 130 | (b) DNA samples collected under paragraph (a) from persons |
| 131 | arrested for any felony offense or attempted felony offense in |
| 132 | this state are subject to sufficient funding appropriations |
| 133 | being approved by the Legislature and becoming law according to |
| 134 | the following schedule: |
| 135 | 1. Beginning January 1, 2011, all felonies defined by |
| 136 | chapters 782, 784, 794, and 800. |
| 137 | 2. Beginning January 1, 2013, all felonies defined by |
| 138 | chapters 810 and 812. |
| 139 | 3. Beginning January 1, 2015, all felonies defined by |
| 140 | chapters 787 and 790. |
| 141 | 4. Beginning January 1, 2017, all felonies defined by |
| 142 | chapter 893. |
| 143 | 5. Beginning January 1, 2019, all remaining felony |
| 144 | offenses. |
| 145 |
|
| 146 | The department may reject DNA samples submitted pursuant to this |
| 147 | subsection if submitted before the funding of any phase or if |
| 148 | received before the department issues an official notification |
| 149 | to the submitting agency that the department is sufficiently |
| 150 | prepared to receive the samples. |
| 151 | (c) On or before February 1, 2010, and by February 1 of |
| 152 | each even-numbered year thereafter through 2018, the department |
| 153 | shall submit a report to the Legislature listing the funding, |
| 154 | infrastructure, facility, and personnel requirements necessary |
| 155 | to operate the DNA database and DNA evidentiary analysis for the |
| 156 | expansion phase scheduled for the following year. |
| 157 | (4) STATEWIDE DNA DATABASE.--The department, through the |
| 158 | statewide criminal laboratory analysis system shall establish, |
| 159 | implement, and maintain a statewide automated personal |
| 160 | identification system capable of, but not limited to, |
| 161 | classifying, matching, and storing analyses of DNA and other |
| 162 | biological molecules and related data. The department shall be |
| 163 | the administrator of the statewide DNA database. All accredited |
| 164 | local government crime laboratories within the state shall have |
| 165 | access through CODIS to the statewide DNA database in accordance |
| 166 | with 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 |
| 169 | therefrom furnished pursuant to this section. |
| 170 | (b) Collect, process, maintain, and disseminate |
| 171 | information and records as provided by this section. |
| 172 | (c) Strive to maintain and disseminate only accurate and |
| 173 | complete records. |
| 174 | (d) Participate in the national DNA database program |
| 175 | administered by the Federal Bureau of Investigation. |
| 176 | (e) Provide for liaison with the Federal Bureau of |
| 177 | Investigation and other criminal justice agencies relating to |
| 178 | the state's participation in the CODIS program and the national |
| 179 | DNA index system. |
| 180 | (f) Adopt rules specifying the proper procedure, including |
| 181 | requisite identification information, for state and local law |
| 182 | enforcement and correctional agencies to collect and submit DNA |
| 183 | samples pursuant to this section. |
| 184 | (6) SAMPLES.--The statewide DNA database may contain DNA |
| 185 | data obtained from the following types of biological samples: |
| 186 | (a) Crime scene samples. |
| 187 | (b) Samples obtained from qualifying offenders required by |
| 188 | this section to provide a biological sample for DNA analysis and |
| 189 | inclusion in the statewide DNA database. |
| 190 | (c) Samples lawfully obtained during the course of a |
| 191 | criminal investigation. |
| 192 | (d) Samples from deceased victims or suspects that were |
| 193 | lawfully 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 |
| 197 | missing 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 |
| 204 | release, control release, or any other type of court-ordered |
| 205 | supervision in this state, |
| 206 | |
| 207 | shall be required to submit a DNA sample to a department- |
| 208 | designated facility. |
| 209 | (b) Arrested qualifying offenders must submit a DNA sample |
| 210 | at the time they are booked into a jail, correctional facility, |
| 211 | or juvenile facility. |
| 212 | (c) Incarcerated persons and those in the custody of the |
| 213 | Department of Juvenile Justice must submit required DNA samples |
| 214 | not less than 45 days before their presumptive date of release |
| 215 | from such incarceration or commitment. |
| 216 | (d) Upon the conviction of any qualifying offender which |
| 217 | results in the commitment of the offender to a county jail, |
| 218 | correctional facility, or juvenile facility, the entity |
| 219 | responsible for the jail or facility shall ensure that a DNA |
| 220 | sample is promptly secured and transmitted to the department. |
| 221 | Personnel at the jail, correctional facility, or juvenile |
| 222 | facility shall collect the DNA samples as part of the regular |
| 223 | processing of qualifying offenders committed to the jail or |
| 224 | facility. |
| 225 | (e) If a qualifying offender is not incarcerated following |
| 226 | conviction, that offender may not be released from the custody |
| 227 | of the court at the time of sentencing or released pursuant to a |
| 228 | bond or surety until the DNA sample required by this section has |
| 229 | been taken by the sheriff or his or her designee. The sheriff |
| 230 | shall secure, process, and transmit the DNA sample to the |
| 231 | department in a timely manner. |
| 232 | (8) REASONABLE FORCE.--Duly authorized law enforcement and |
| 233 | corrections personnel may employ reasonable force in cases where |
| 234 | a qualifying offender refuses to provide a DNA sample required |
| 235 | under this section, and no such employee shall be civilly or |
| 236 | criminally liable for the use of such reasonable force. |
| 237 | (9) OUT-OF-STATE OFFENDERS.--Any qualifying offender who |
| 238 | is: |
| 239 | (a) Transferred to this state under the Interstate Compact |
| 240 | on Juveniles, part XIII of chapter 985, for a felony offense or |
| 241 | attempted felony offense, or |
| 242 | (b) Accepted under Article IV of the Interstate |
| 243 | Corrections Compact, part III of chapter 941, for a felony |
| 244 | offense or attempted felony offense, |
| 245 | |
| 246 | shall provide a DNA sample pursuant to this section to the |
| 247 | entity responsible for supervision of the offender, who shall |
| 248 | ensure that the DNA sample is collected in a manner approved by |
| 249 | the department and promptly secured and transmitted to the |
| 250 | department. |
| 251 | (10) COLLECTION; LIABILITY.-- |
| 252 | (a) The collection of DNA samples may be performed by any |
| 253 | person using a collection kit approved by the department as |
| 254 | directed in the kit or pursuant to other procedures approved by |
| 255 | or acceptable to the department. |
| 256 | (b) Any person who collects or assists in the collection |
| 257 | of a DNA sample is not civilly or criminally liable if a |
| 258 | collection kit provided or approved by the department is used |
| 259 | and the collection is done as directed in the kit, in a manner |
| 260 | approved by the department, or is performed in an otherwise |
| 261 | reasonable manner. |
| 262 | (11) SAMPLE SUBMISSION.--The department will provide the |
| 263 | DNA sample collection kits, labels, or other appropriate |
| 264 | containers and instructions for the collection of the DNA |
| 265 | samples. After collection, the DNA samples shall be forwarded to |
| 266 | the department for analysis to determine genetic markers and |
| 267 | characteristics for the purpose of individual identification of |
| 268 | the person submitting the sample. |
| 269 | (a) At minimum, the following information must be included |
| 270 | with each submission: |
| 271 | 1. The qualifying offender's last name, first name, date |
| 272 | of birth, race, gender, and State Identification (SID) number if |
| 273 | known. |
| 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 |
| 277 | the collection of the DNA sample or witnessing the collection of |
| 278 | the sample. |
| 279 | (b) If a DNA sample submitted to the department under this |
| 280 | section cannot be used by the department in the manner and for |
| 281 | the purposes required by this section, the department may |
| 282 | require that another DNA sample be obtained. |
| 283 | (12) COURT ORDERS; COSTS.--The sentencing court shall |
| 284 | include in the judgment order for a qualifying offender a |
| 285 | provision requiring collection of a DNA sample from the |
| 286 | defendant in a manner consistent with this section. |
| 287 | (a) Unless a convicted person has been declared indigent |
| 288 | by the court, the convicted person shall pay the actual costs of |
| 289 | collecting the approved biological specimens required under this |
| 290 | section. |
| 291 | (b) If the order of a sentencing court fails to order a |
| 292 | qualifying offender to submit a DNA sample as mandated by this |
| 293 | section, the prosecutor may seek an amended order from the |
| 294 | sentencing court requiring submission of a DNA sample in |
| 295 | compliance with this section. In the alternative, the |
| 296 | department, the Department of Corrections, a law enforcement |
| 297 | agency, or a prosecutor may apply to the appropriate circuit |
| 298 | court with jurisdiction for an order authorizing the seizure of |
| 299 | the qualifying offender for the purpose of securing the required |
| 300 | DNA sample. |
| 301 | 1. The court shall issue the order upon a showing of |
| 302 | probable cause. |
| 303 | 2. Following issuance of the order, the DNA sample shall |
| 304 | be collected in a reasonable manner and the qualifying offender |
| 305 | shall be released unless there is cause to justify retaining the |
| 306 | offender in custody. |
| 307 | (c) Failure by a law enforcement agency or other entity |
| 308 | involved in collection of DNA samples under this section to |
| 309 | strictly comply with this section or to abide by a statewide |
| 310 | protocol for collecting DNA samples is not grounds for |
| 311 | challenging the validity of the collection or the use of a DNA |
| 312 | sample in court and evidence based upon or derived from the |
| 313 | collected DNA sample may not be excluded by a court. |
| 314 | (d) The detention, arrest, or conviction of a person based |
| 315 | upon a database match or database information will not be |
| 316 | invalidated if it is later determined that the sample was |
| 317 | obtained or placed in the database by mistake. |
| 318 | (e) All DNA samples submitted to the department for any |
| 319 | reason shall be retained in the statewide DNA database and may |
| 320 | be 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 |
| 323 | collection, submission, identification, analysis, storage, and |
| 324 | disposition of the DNA samples and DNA records collected under |
| 325 | this section. These procedures shall also ensure compliance with |
| 326 | national quality assurance standards so that the DNA records may |
| 327 | be accepted into the national DNA database. |
| 328 | (b) The analyses of DNA samples collected under this |
| 329 | section shall be used only for law enforcement identification |
| 330 | purposes or to assist in the recovery or identification of human |
| 331 | remains or missing persons and may not be used for |
| 332 | identification of any medical or genetic condition. |
| 333 | (c) When completed, the results of DNA analysis shall be |
| 334 | entered into the statewide DNA database maintained and |
| 335 | administered by the department for such purpose, as provided in |
| 336 | this section. |
| 337 | (14) RESULTS.--The results of a DNA analysis and the |
| 338 | comparison of analytic results shall be released only to |
| 339 | criminal justice agencies as defined in s. 943.045(10), at the |
| 340 | request of the agency. Otherwise, such information is |
| 341 | confidential and exempt from the provisions of s. 119.07(1) and |
| 342 | s. 24(a), Art. I of the State Constitution. |
| 343 | (15) OFFENSES AND PENALTIES.-- |
| 344 | (a) Any person subject to the requirements of this section |
| 345 | who willfully refuses to provide a DNA sample commits a |
| 346 | misdemeanor of the second degree, punishable as provided in s. |
| 347 | 775.082 or s. 775.083. |
| 348 | (b) Any person who: |
| 349 | 1. Knowingly or intentionally discloses a DNA record, |
| 350 | including the results of a DNA analysis, to a person or agency |
| 351 | other than one authorized to have access to such records under |
| 352 | this section; |
| 353 | 2. Knowingly or intentionally uses or receives DNA |
| 354 | records, including the results of DNA analysis, for purposes |
| 355 | other than those authorized under this section; or |
| 356 | 3. Knowingly or intentionally tampers or attempts to |
| 357 | tamper with any DNA sample, the result of any analysis of a DNA |
| 358 | sample, or a DNA sample collection container |
| 359 | |
| 360 | commits a felony of the third degree, punishable as provided in |
| 361 | s. 775.082, s. 775.083, or s. 775.084. |
| 362 | (16) REMOVAL FROM DATABASE.-- |
| 363 | (a) Unless the department determines that a person is |
| 364 | otherwise required by law to submit a DNA sample for inclusion |
| 365 | in the statewide DNA database, the department shall, upon |
| 366 | receipt and completion of such verification as may be required |
| 367 | of the information noted below, promptly remove from the |
| 368 | statewide DNA database the DNA analysis and any DNA biological |
| 369 | samples that may have been retained of a person included therein |
| 370 | on the basis of: |
| 371 | 1. A conviction for a qualifying offense specified in |
| 372 | paragraph (2)(g)2.a. or b., if the department receives, from the |
| 373 | person seeking removal of DNA information from the statewide DNA |
| 374 | database, for each qualifying offense, a certified copy of a |
| 375 | final court order establishing that such conviction has been |
| 376 | overturned on direct appeal or set aside in a postconviction |
| 377 | proceeding; or |
| 378 | 2. An arrest, if the department receives, from the person |
| 379 | seeking removal of DNA information from the statewide DNA |
| 380 | database, for each charge against the person on the basis of |
| 381 | which the analysis was or could have been included in the |
| 382 | statewide DNA database, a certified copy of the no information |
| 383 | or nolle prosequi filed by the state attorney, or final court |
| 384 | order or other official documentation establishing that such |
| 385 | charge has been dismissed or has resulted in an acquittal or |
| 386 | that no charge was filed within the applicable time period. |
| 387 |
|
| 388 | For purposes of this paragraph, a court order is not final if |
| 389 | time remains for an appeal or application for discretionary |
| 390 | review with respect to the order, or if a case has been remanded |
| 391 | for retrial or other proceedings and has not been resolved after |
| 392 | remand, or time remains for appeal or discretionary review of |
| 393 | the remanded case or any other such proceedings that have not |
| 394 | concluded and rendered the case resolved with finality. |
| 395 | (b) The department shall, by rule, establish the procedure |
| 396 | by which a person seeking removal of his or her DNA analysis and |
| 397 | biological sample from the statewide DNA database shall submit |
| 398 | the certified information required in this subsection to the |
| 399 | department. |
| 400 | Section 3. Paragraph (a) of subsection (2) of section |
| 401 | 760.40, Florida Statutes, is amended to read: |
| 402 | 760.40 Genetic testing; informed consent; confidentiality; |
| 403 | penalties; notice of use of results.-- |
| 404 | (2)(a) Except for purposes of criminal prosecution, except |
| 405 | for purposes of determining paternity as provided in s. 409.256 |
| 406 | or s. 742.12(1), and except for purposes of acquiring specimens |
| 407 | from persons convicted of certain offenses or as otherwise |
| 408 | provided in s. 943.325, DNA analysis may be performed only with |
| 409 | the informed consent of the person to be tested, and the results |
| 410 | of such DNA analysis, whether held by a public or private |
| 411 | entity, are the exclusive property of the person tested, are |
| 412 | confidential, and may not be disclosed without the consent of |
| 413 | the person tested. Such information held by a public entity is |
| 414 | exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I |
| 415 | of the State Constitution. |
| 416 | Section 4. Subsection (1) of section 948.014, Florida |
| 417 | Statutes, is amended to read: |
| 418 | 948.014 Requirement to submit to drawing of blood or other |
| 419 | biological specimens.-- |
| 420 | (1) As a condition of probation, community control, or any |
| 421 | other court-ordered community supervision, the court shall order |
| 422 | offenders order persons convicted of offenses specified in s. |
| 423 | 943.325 to submit to the drawing of the blood or other |
| 424 | biological specimens when required under s. 943.325 as |
| 425 | prescribed in that section as a condition of the probation, |
| 426 | community control, or other court-ordered community supervision. |
| 427 | Section 5. This act shall take effect July 1, 2009. |