Legislature(2003 - 2004)

05/10/2003 09:05 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                                                                                                                                
     SENATE CS FOR CS FOR HOUSE BILL NO. 49(JUD)                                                                                
     "An Act relating to the deoxyribonucleic acid (DNA)                                                                        
     identification registration system and testing; and providing                                                              
     for an effective date."                                                                                                    
                                                                                                                                
                                                                                                                                
This  was the first  hearing  for this  bill in  the Senate  Finance                                                            
Committee.                                                                                                                      
                                                                                                                                
Co-chair  Wilken informed  that this bill  would expand the  State's                                                            
deoxyribonucleic  acid (DNA) database  "registry to include  samples                                                            
from all persons who are  convicted of a felony or a misdemeanor sex                                                            
offense."                                                                                                                       
                                                                                                                                
REPRESENTATIVE TOM ANDERSON,  the bill's sponsor, explained that the                                                            
collection  of DNA  "is  the next  step in  the advancement  in  the                                                            
science  of  crime investigation,"   and has  been  instrumental  in                                                            
providing  evidence  in convictions  that,  otherwise,  "would  have                                                            
previously  been  impossible."  He  stated  that  DNA  evidence,  in                                                            
addition  to assisting in  convictions, has  also aided in  clearing                                                            
persons  wrongfully   accused  of  a  crime.  He  stated  that  this                                                            
legislation would provide  law enforcement efficiencies, assist with                                                            
furthering  unsolved crimes,  and expand the  State's DNA  database.                                                            
Furthermore, he noted that  DNA samples would be acquired from those                                                            
juveniles adjudicated as  a delinquent for felony or misdemeanor sex                                                            
offenses, would  allow for voluntary  and anonymous DNA donors,  and                                                            
would require  that sex  offenders or child  kidnappers register  as                                                            
such. He stated that DNA sampling is a nationwide trend.                                                                        
                                                                                                                                
Senator Bunde voiced support for the bill.                                                                                      
                                                                                                                                
                                                                                                                                
SFC 03 # 86, Side B 09:52 AM                                                                                                    
                                                                                                                                
Senator Bunde  understood that parents  might voluntarily  desire to                                                            
have   their   children's   DNA  sampled   in   order   to   provide                                                            
identification   verification;  however,  he   asked  the  value  of                                                            
anonymous DNA donations.                                                                                                        
                                                                                                                                
ANNE CARPENETI, Assistant  Attorney General, Legal Services Section-                                                            
Juneau,  Criminal   Division,  Department  of  Law  responded   that                                                            
anonymous  DNA donations  could be valuable  in identifying  missing                                                            
person remains.                                                                                                                 
                                                                                                                                
Senator  Taylor  asked  for  further  clarification  regarding  "the                                                            
scope" of  individuals who  would be affected  by this DNA  sampling                                                            
legislation.                                                                                                                    
                                                                                                                                
Ms. Carpeneti  stated that individuals "convicted  of felonies under                                                            
Title 11  and Title 28,  Chapter 35 felonies  which is felony  drunk                                                            
driving,  felony  refusal   and  felony  leaving  the  scene  of  an                                                            
accident"  would be subject  to the legislation.  Additionally,  she                                                            
noted it would  affect persons convicted  of crimes against  persons                                                            
under AS  1141 that would  include "a few  misdemeanor sex  offenses                                                            
and assaults."                                                                                                                  
                                                                                                                                
Senator Taylor asked how the legislation would affect juveniles.                                                                
                                                                                                                                
Ms. Carpeneti responded  that it would affect "juveniles adjudicated                                                            
as delinquents" who are convicted for these offenses.                                                                           
                                                                                                                                
Senator Taylor asked the legislation's fiscal impact.                                                                           
                                                                                                                                
Co-chair  Wilken  stated that  an indeterminate  Department  of  Law                                                            
fiscal note accompanies the bill.                                                                                               
                                                                                                                                
Senator Taylor  asked whether federal funding might  be forthcoming.                                                            
                                                                                                                                
Ms. Carpeneti  voiced the understanding  that federal funding  would                                                            
be available to provide for the additional testing expenses.                                                                    
                                                                                                                                
JUANITA  HENSLEY, Special  Assistant,  Office of  the Commissioner,                                                             
Department  of Public  Safety, noted  that this  federal funding  is                                                            
unique  in  that  the  federal  government  would  establish  direct                                                            
contracts with certified  laboratories to which the State would send                                                            
the samples  for testing.  She noted that  this indirect funding  is                                                            
anticipated to be available for a minimum of five years.                                                                        
                                                                                                                                
Senator Hoffman  asked what provisions  are included in the  bill to                                                            
guarantee that the DNA  samples would not be used for other purposes                                                            
such  as health  information  or  cloning.  Additionally,  he  asked                                                            
regarding  the State's liability  regarding  the protection  of this                                                            
information.                                                                                                                    
                                                                                                                                
Representative Anderson  responded that Section 11.56.762 located on                                                            
page 2, lines 20 - 26 of the bill addresses this concern.                                                                       
                                                                                                                                
     Sec.  11.56.762.  Unlawful use  of DNA  samples.  (a) A  person                                                            
     commits the crime  of unlawful use of DNA samples if the person                                                            
     knowingly, without  authorization under AS 44.41.035, possesses                                                            
     or  allows  another person  access  to (1)  a blood,  oral,  or                                                            
     tissue sample  collected for inclusion in the  deozyribonucleic                                                            
     identification  registration system under AS  44.41.035, or (2)                                                            
     identification data or records derived from those samples.                                                                 
          (b) Unlawful use of DNA samples is a class C felony.                                                                  
                                                                                                                                
Ms. Carpeneti qualified  that the DNA testing would be limited to 13                                                            
specific criteria  and would not include  medical DNA testing  which                                                            
determines health history.  She stressed that, while the State crime                                                            
laboratory  would retain the DNA sample  in a secured facility,  the                                                            
legislation   prohibits  a  wider   range  of  testing  from   being                                                            
conducted.                                                                                                                      
                                                                                                                                
Senator Hoffman  clarified that the  testing would be limited  to 13                                                            
elements.                                                                                                                       
                                                                                                                                
Ms. Carpeneti  stated that the 13 DNA molecule-sampling  tests would                                                            
provide sufficient  information to the Department  of Public Safety.                                                            
She continued  that the sample  would be  securely retained  in case                                                            
the DNA results require double-checking.                                                                                        
                                                                                                                                
Senator  Olson  asked  how  this  legislation  provides   protection                                                            
against DNA being used for commercial purposes.                                                                                 
                                                                                                                                
Representative  Anderson  stated  that  protection  is  provided  in                                                            
language  on page 3, line  23 through page  4, line 1 that  reads as                                                            
follows.                                                                                                                        
                                                                                                                                
     Sec. 7. AS 44.41.035(f) is amended to read:                                                                                
        (f) The DNA identification registration system is                                                                       
     confidential,  is  not  a pubic  record  under AS  40.25.110  -                                                            
     40.25.140, and may be used only for                                                                                        
             (1) providing DNA or other blood grouping tests for                                                                
        identification analysis;                                                                                                
             (2) [LAW ENFORCEMENT PURPOSES INCLUDING] criminal                                                                  
        investigations; [AND] prosecutions, and identification of                                                             
        human remains;                                                                                                        
             (3) statistical blind analysis; [OR]                                                                               
             (4) improving the operation of the system; or                                                                    
             (5) exoneration of the innocent.                                                                                 
                                                                                                                                
        New text underlined [DELETED TEXT BRACKETED]                                                                          
                                                                                                                                
Representative  Anderson asserted  "that parameters"  pertaining  to                                                            
sampling use are provided in the legislation.                                                                                   
                                                                                                                                
CHRIS BEHEIM,  Director, Scientific  Crime Detection Laboratory  and                                                            
Manager,  DNA Database, Department  of Public  Safety testified  via                                                            
teleconference from an  offnet site to share that in the previous 16                                                            
months, the State's  DNA database entertained 30 searches  resulting                                                            
in 15  instances where  the DNA database  "actually connected  crime                                                            
scene  evidence   to  convicted  offenders."  He  stated   that  the                                                            
remaining  15 "hits  linked together  unsolved  crimes" whereby  law                                                            
enforcement officials have  been notified that "the same perpetrator                                                            
committed these  seemingly unrelated offenses." He  shared successes                                                            
that other  states have experienced  by the  expansion of their  DNA                                                            
programs.                                                                                                                       
                                                                                                                                
Mr. Beheim  communicated that  while the  current program is  "very,                                                            
very successful,"  an  expanded program  would be  beneficial  as it                                                            
would provide  identification information  for children;  incur cost                                                            
savings   by   reducing   the   time   involved   in   crime   scene                                                            
investigations;  update  evidence  information  on  older,  unsolved                                                            
crimes;  and exonerate  some individuals  considered  suspects  in a                                                            
crime.  He continued  that this  legislation would  align the  State                                                            
with  other  states'   programs  by  allowing  DNA   samples  to  be                                                            
retroactively  acquired from  individuals who  are in jail  or under                                                            
probation  or  parole.  He noted  that  current  policy  limits  the                                                            
collection  of DNA sampling  to those convicted  since the  bill was                                                            
initially enacted in 1996.                                                                                                      
                                                                                                                                
Mr.  Beheim informed  that  the state  of  Virginia,  which has  the                                                            
largest criminal "DNA database  in the country," has determined that                                                            
were their  DNA database limited to  only violent offenders,  a high                                                            
percentage of crimes would  not have been solved as "there is a very                                                            
strong  correlation  between individuals  who  might  not have  been                                                            
convicted  of violent  crimes  but are  still involved  in  criminal                                                            
activity." Therefore, he  anticipated that the State of Alaska would                                                            
experience a similar  increase in its ability to match  perpetrators                                                            
to crime  scenes. He  continued that  this program  would allow  the                                                            
State's  DNA database  to be uploaded  into the  National DNA  Index                                                            
System   (NDIS)   to   allow   unsolved   crime   profiles   to   be                                                            
reciprocatively  matched against  other states'  convicted  offender                                                            
databases.                                                                                                                      
                                                                                                                                
Mr. Beheim  assured that the testing  of the "DNA markers"  would be                                                            
limited  to   law  enforcement  identification   purposes,   and  he                                                            
furthered that,  rather than being  identified by name, DNA  samples                                                            
are identified  by a laboratory coding system that  is known only to                                                            
that particular crime laboratory.                                                                                               
                                                                                                                                
Senator  Bunde asked  Mr. Beheim to  comment on  whether the  coding                                                            
system would  provide adequate  security  measures against  computer                                                            
hackers  who might  seek  access to  the  information  to sell,  for                                                            
instance, to an insurance company.                                                                                              
                                                                                                                                
Mr. Beheim  assured that  the coding system  would prevent  a sample                                                            
from being  traced  to an individual.  Additionally,  he  emphasized                                                            
that medical  testing  information  would be  unavailable, as  those                                                            
types of tests would not be conducted.                                                                                          
                                                                                                                                
LINDA WILSON,  Deputy Director, Public  Defender Agency,  Department                                                            
of Administration  testified via teleconference from  an offnet site                                                            
to   express  that   the   adoption   of  this   legislation   would                                                            
"significantly  expand"  the offenses"  upon which  DNA sampling  is                                                            
conducted.  She expressed that the  80 offenses that would  be added                                                            
to the qualifying list  would range from misdemeanor convictions for                                                            
indecent exposure and assaultive  behavior to felony convictions for                                                            
such non-violent  crimes as shoplifting  and refusal to submit  to a                                                            
Breathalyzer test  and failure to stop at the direction  of a police                                                            
officer. In  addition, she stated  that the retroactive language  in                                                            
the bill is going "to widen"  the number of individuals who would be                                                            
required to give a sample.                                                                                                      
                                                                                                                                
Ms  Wilson  anticipated  that the  department  would  experience  an                                                            
increase in its  caseload due to being appointed to  represent those                                                            
individuals  refusing   to adhere   to the  DNA  requirements.   She                                                            
continued  that this expected  increase in  caseloads is the  reason                                                            
that the department has  submitted an indeterminate fiscal note. She                                                            
criticized  that  the bill  does  not  include  a mechanism  to  re-                                                            
evaluate  a  crime  wherein  a  convicted  person   maintains  their                                                            
innocence.  She asserted that  a mechanism  to retest old  evidence,                                                            
which  was  processed using  less  sophisticated  methods  than  are                                                            
available today, should be included in the bill.                                                                                
                                                                                                                                
Senator  Olson  asked  whether  the  Department  of  Administration                                                             
supported the legislation.                                                                                                      
                                                                                                                                
Ms. Wilson  announced that  the department  was not in favor  of the                                                            
legislation.                                                                                                                    
                                                                                                                                
Senator  Bunde asked  for further  information  regarding  testimony                                                            
citing  that individuals  who  commit  "petty crimes  or  relatively                                                            
minor felony offenses" commit more serious offenses.                                                                            
                                                                                                                                
Ms. Hensley shared that  when the state of Virginia expanded its DNA                                                            
sampling  database to include  individuals  who were convicted  of a                                                            
"white collar  crime" such as forgery, the inclusion  of these "non-                                                            
violent crime"  offenders in the DNA data base enabled  the State to                                                            
solve 63-percent  of its property crimes, 21-percent  of sex offense                                                            
crimes,  14-percent of homicide  crimes, and  one-percent of  murder                                                            
crimes. She  asserted that  this is evidence  that individuals,  who                                                            
commit  non-violent  crimes such  as  shoplifting,  do commit  other                                                            
crimes including violent crimes.                                                                                                
                                                                                                                                
Senator Stevens asked how  this legislation would expand the State's                                                            
DNA qualifying  offenses  as specified  in the  "State DNA  Database                                                            
Laws Qualifying Offenses  (As of October 2002)" chart in the October                                                            
15,  2002   National  Conference   of  State   Legislatures   (NCSL)                                                            
LegisBrief  [copy on  file].  He voiced  the understanding  that  it                                                            
would provide for the inclusion of all felony offenses.                                                                         
                                                                                                                                
Ms. Carpeneti agreed that  all felony offenses listed in the State's                                                            
Title 11  and Title 28.35  would qualify,  including Felony  Driving                                                            
While  Intoxicated  (DWI)  and  refusal  to  submit  to  an  alcohol                                                            
Breathalyzer  test, as  well as  "juveniles found  to be  delinquent                                                            
based on similar acts."  Additionally, she stated, "it would include                                                            
some misdemeanors  that  are crimes  against a person;"  as well  as                                                            
arrestees  or suspects "if  there's a search  warrant to gather  DNA                                                            
from the suspect;"  however, she clarified that their  DNA would not                                                            
be  included in  the  databank were  they  cleared of  the  offense.                                                            
Continuing,  she  stated  that  the  DNA  sampling  expansion  would                                                            
include  individuals  currently  on  probation  or parole  were  the                                                            
crimes they committed offenses that are being added.                                                                            
                                                                                                                                
Senator Stevens assumed,  therefore, that other states listed on the                                                            
chart might "have limited versions" of offenses as well.                                                                        
                                                                                                                                
Ms. Carpeneti concurred.                                                                                                        
                                                                                                                                
Ms. Carpeneti clarified  that the bill would not include individuals                                                            
on unsupervised probation or parole.                                                                                            
                                                                                                                                
Senator B. Stevens  assumed that the four states that  are using DNA                                                            
sampling  to  its  "fullest  advantage"  require  DNA  samples  from                                                            
arrestees and suspects.                                                                                                         
                                                                                                                                
Ms.  Carpeneti  noted  that  Louisiana  does  require  suspects  and                                                            
arrestees to give  DNA samples. However, she noted  that it does not                                                            
require all violent crime offenders to provide DNA samples.                                                                     
                                                                                                                                
Senator  B. Stevens  surmised that  because Louisiana  requires  DNA                                                            
samples from arrestees  and suspects, there is no need to require it                                                            
from the violent crime  offenders as they might have previously been                                                            
sampled.                                                                                                                        
                                                                                                                                
Ms. Carpeneti  replied that in some states, including  Alaska, a DNA                                                            
sample taken  from an arrestee  or suspect  who is not convicted  or                                                            
whose conviction  is overruled, would  be purged from the  databank.                                                            
                                                                                                                                
Senator  Stevens stated  that because  all crime  scene evidence  is                                                            
retained indefinitely,  a convicted offender's DNA  could be matched                                                            
against  the entire  field.  Therefore,  he  asserted  that all  the                                                            
various offense  qualifications could  be eliminated, were  the bill                                                            
simplified to require "all jailed offenders" to be tested.                                                                      
                                                                                                                                
Ms.  Hensley  puzzled  as  to the  reason  that  all  violent  crime                                                            
offenders are not tested in some states.                                                                                        
                                                                                                                                
Senator B  Stevens asserted  that DNA testing  of all offenders  was                                                            
originally the intent of presenting this legislation.                                                                           
                                                                                                                                
Representative Anderson could not verify that assertion.                                                                        
                                                                                                                                
Senator  B.  Stevens  stated  that  he  would  not  be  offering  an                                                            
amendment   to  this  affect  because   it  would  experience   much                                                            
opposition.  However,  he pointed  out that  were  all offenders  to                                                            
provide DNA samples, they  would either be exonerated of a crime and                                                            
their DNA sample  would be destroyed or they would  be convicted and                                                            
would be a jailed offender.                                                                                                     
                                                                                                                                
Representative Anderson  agreed; however, he voiced that there would                                                            
not be support for such a blanket approach.                                                                                     
                                                                                                                                
Senator Stevens asserted  that an all-inclusive approach would solve                                                            
more crimes.                                                                                                                    
                                                                                                                                
Senator  Taylor voiced  concern regarding  the security  of the  DNA                                                            
databanks and urged that  safeguards be instituted to warrant a high                                                            
level of confidence.                                                                                                            
                                                                                                                                
Ms. Carpeneti  responded that the  Department of Law has  confidence                                                            
that  adequate safeguards  would  be in  place. She  noted that  the                                                            
inclusion of language specifying  that anyone found guilty of misuse                                                            
of the sample  and the data would  be charged with a Class  C felony                                                            
would be a deterrent.                                                                                                           
                                                                                                                                
Senator  Olson voiced  concern  that a  DNA match  might reflect  "a                                                            
false positive" and therefore convict an innocent person.                                                                       
                                                                                                                                
Mr. Beheim  responded that DNA profiles  are essentially  unique and                                                            
that  it  would be  virtually  impossible,  with  the  exception  of                                                            
identical twins,  for two individuals to have the  same DNA profile.                                                            
He alerted that  a sample mix-up could occur, however,  he qualified                                                            
that  samples  are retained  and  are  re-analysised  for  "positive                                                            
assurance" whenever a positive "hit" is found.                                                                                  
                                                                                                                                
Senator  Olson asked how  often a  mix-up in the  collection  of the                                                            
data and a DNA sample might occur.                                                                                              
                                                                                                                                
Mr. Beheim responded  that no mix-ups were found in  the re-analysis                                                            
conducted  on the 15 positive  hits that  have been experienced.  He                                                            
continued  that in addition  to the  re-testing  of the crime  scene                                                            
evidence,  a new DNA sample  from the suspect  is also acquired  and                                                            
tested previous to any criminal proceedings being undertaken.                                                                   
                                                                                                                                
Senator Olson  asked what  is done with DNA  samples of an  unsolved                                                            
crime.                                                                                                                          
                                                                                                                                
Mr. Beheim  responded that all crime  scene evidence is permanently                                                             
retained in  the laboratory. He stated  that all unsolved  crime DNA                                                            
profiles,  which are referred  to as a forensic  index, are  entered                                                            
into a national  database and "are  searched against other  unsolved                                                            
cases" on a State and national level.                                                                                           
                                                                                                                                
AT EASE 10:26 AM / 10:26 AM                                                                                                     
                                                                                                                                
Senator  Taylor  moved  to  report  the  bill  from  Committee  with                                                            
individual recommendations and accompanying fiscal notes.                                                                       
                                                                                                                                
Without objection,  SCS HB 49(JUD) was REPORTED from  Committee with                                                            
previous zero fiscal note  # 1 from the Department of Public Safety,                                                            
previous zero  fiscal note #2 from  Department of Law; and  previous                                                            
indeterminate fiscal note  #3 from the Department of Administration.                                                            
                                                                                                                                

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