Legislature(2003 - 2004)
05/10/2003 09:05 AM Senate FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.