HB 1151

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; amending
44	ss. 760.40 and 948.014, F.S.; conforming provisions to
45	changes made by this act; providing an effective date.
46
47	Be It Enacted by the Legislature of the State of Florida:
48
49	Section 1.  This act may be cited as the "DNA Database
50	Act."
51	Section 2.  Section 943.325, Florida Statutes, is amended
52	to read:
53	(Substantial rewording of section. See
54	s. 943.325, F.S., for present text)
55	943.325  DNA Database.--
56	(1)  LEGISLATIVE INTENT.--
57	(a)  The Legislature hereby finds that DNA databases are
58	important tools in criminal investigations, in the exclusion of
59	individuals who are the subject of criminal investigations or
60	prosecutions and in detecting recidivist acts. It is the policy
61	of this state to assist federal, state, and local criminal
62	justice and law enforcement agencies in the identification and
63	detection of individuals in criminal investigations and the
64	identification and location of missing and unidentified persons.
65	Therefore, it is in the best interests of the citizens of this
66	state to establish a statewide DNA database containing DNA
67	samples submitted by persons convicted of or arrested for felony
68	offenses and convicted of certain misdemeanor offenses.
69	Additionally, the statewide DNA database shall include DNA
70	records and samples necessary for the identification of missing
71	persons and unidentified human remains, including DNA samples
72	voluntarily contributed by relatives of missing persons.
73	(b)  The Legislature also finds that upon establishment of
74	the Florida DNA database a match between casework evidence DNA
75	samples from a criminal investigation and DNA samples from a
76	state or federal DNA database of certain offenders may be used
77	to find probable cause for the issuance of a warrant to obtain
78	the DNA sample from an offender.
79	(2)  DEFINITIONS.--As used in this section, the term:
80	(a)  "Arrested" means apprehended or physically taken into
81	custody, resulting in the submission of arrest fingerprints to
82	the department, pursuant to s. 943.051.
83	(b)  "CODIS" means the Federal Bureau of Investigation's
84	Combined DNA Index System that allows the storage and exchange
85	of DNA records submitted by federal, state, and local forensic
86	DNA laboratories.
87	(c)  "Convicted" means a finding of guilt by a court of
88	competent jurisdiction, or entry of a plea of nolo contendere or
89	guilty, or, in the case of a juvenile, the finding of
90	delinquency, regardless of adjudication.
91	(d)  "DNA" means deoxyribonucleic acid. DNA is located in
92	the cells and provides an individual's personal genetic
93	blueprint. DNA encodes genetic information that is the basis of
94	human heredity and forensic identification.
95	(e)  "DNA record" means all information associated with the
96	collection and analysis of a person's DNA sample, including the
97	distinguishing characteristics collectively referred to as a DNA
98	profile.
99	(f)  "DNA sample" means a buccal or other approved
100	biological specimen capable of undergoing DNA analysis.
101	(g)  "Qualifying offender" means any person, including
102	juveniles and adults committed to a county jail or committed to
103	or under the supervision of the Department of Corrections or the
104	Department of Juvenile Justice, including persons incarcerated
105	in a private correctional institution operated under contract
106	pursuant to s. 944.105, and persons transferred to this state
107	under the Interstate Compact on Juveniles, part XIII of chapter
108	985, or accepted under Article IV of the Interstate Corrections
109	Compact, part III of chapter 941, and any person required to
110	register as a sexual offender or sexual predator as defined in
111	s. 943.0435, s. 775.21, s. 944.607, or s. 985.4815, who is:
112	1.  Convicted of any felony offense or attempted felony
113	offense or a similar offense in another jurisdiction, or any
114	misdemeanor violation of s. 784.048, s. 787.025, s. 794.027, s.
115	800.02, s. 800.03, s. 810.14, s. 847.011, s. 847.013, s.
116	847.0135, or s. 877.26, or an offense that was found, pursuant
117	to s. 874.04, to have been committed for the purpose of
118	benefiting, promoting, or furthering the interests of a criminal
119	gang as defined in s. 874.03; or
120	2.  Arrested for any felony offense committed in this
121	state, under the following conditions:
122	a.  Subject to sufficient funding appropriations passed by
123	the Legislature and approved by the Governor for each phase of
124	expansion of DNA sample collection in this sub-subparagraph, and
125	after determination and official notification to submitting
126	agencies by the department that it has sufficient
127	infrastructure, facilities, and personnel to receive such
128	samples, all persons arrested for or charged with any of the
129	following felony offenses shall be required to submit a DNA
130	sample at the time they are booked into a jail, correctional
131	facility, or juvenile facility:
132	(I)  Beginning January 1, 2011, all felonies defined by
133	chapters 782, 784, 794, and 800.
134	(II)  Beginning January 1, 2013, all felonies defined by
135	chapters 810 and 812.
136	(III)  Beginning January 1, 2015, all felonies defined by
137	chapters 787 and 790.
138	(IV)  Beginning January 1, 2017, all felonies defined by
139	chapter 893.
140	(V)  Beginning January 1, 2019, all felony offenses.
141	b.  The department may reject submissions of samples
142	received for any felony arrests prior to funding of any phase
143	set forth in this subparagraph or received prior to the
144	department's official notification to the submitting agency as
145	provided in this section.
146	c.  On or before February 1, 2010, and by February 1 of
147	each even-numbered year thereafter through 2018, the department
148	shall provide the Legislature with a report listing the funding,
149	infrastructure, facility, and personnel requirements for the DNA
150	database and DNA evidentiary analysis for the expansion phase
151	scheduled for the following year.
152	(3)  STATEWIDE DNA DATABASE.--The department, through the
153	statewide criminal laboratory analysis system shall establish,
154	implement, and maintain a statewide automated personal
155	identification system capable of, but not limited to,
156	classifying, matching, and storing analyses of DNA and other
157	biological molecules and related data. The department shall be
158	the administrator of the statewide DNA database. All accredited
159	local government crime laboratories within the state shall have
160	access through CODIS to the statewide DNA database in accordance
161	with the rules and agreements established by the department.
162	(4)  DUTIES.--The department shall:
163	(a)  Receive, process, and store DNA and the data derived
164	therefrom furnished pursuant to this section.
165	(b)  Collect, process, maintain, and disseminate
166	information and records as provided by this section.
167	(c)  Strive to maintain and disseminate only accurate and
168	complete records.
169	(d)  Participate in the national DNA database program
170	administered by the Federal Bureau of Investigation.
171	(e)  Provide for liaison with the Federal Bureau of
172	Investigation and other criminal justice agencies relating to
173	the state's participation in the CODIS program and the national
174	DNA index system.
175	(f)  Adopt rules specifying the proper procedure, including
176	requisite identification information, for state and local law
177	enforcement and correctional agencies to collect and submit DNA
178	samples pursuant to this section.
179	(5)  SAMPLES.--The statewide DNA database may contain DNA
180	data obtained from the following types of biological samples:
181	(a)  Crime scene samples.
182	(b)  Samples obtained from qualifying offenders required by
183	this section to provide a biological sample for DNA analysis and
184	inclusion in the statewide DNA database.
185	(c)  Samples lawfully obtained during the course of a
186	criminal investigation.
187	(d)  Samples from deceased victims or suspects that were
188	lawfully obtained during the course of a criminal investigation.
189	(e)  Samples from unidentified human remains.
190	(f)  Samples from persons reported missing.
191	(g)  Samples voluntarily contributed by relatives of
192	missing persons.
193	(h)  Other samples approved by the department.
194	(6)  COLLECTION OF DNA SAMPLES FROM OFFENDERS.--
195	(a)  Any qualifying offender, who is:
196	1.  Arrested in this state,
197	2.  Incarcerated in this state, or
198	3.  On probation, community control, parole, conditional
199	release, control release, or any other type of court-ordered
200	supervision in this state,
201
202	shall be required to submit a DNA sample to a department-
203	designated facility.
204	(b)  Arrested qualifying offenders must submit a DNA sample
205	at the time they are booked into a jail, correctional facility,
206	or juvenile facility.
207	(c)  Incarcerated persons and those in the custody of the
208	Department of Juvenile Justice must submit required DNA samples
209	not less than 45 days before their presumptive date of release
210	from such incarceration or commitment.
211	(d)  Upon the conviction of any qualifying offender which
212	results in the commitment of the offender to a county jail,
213	correctional facility, or juvenile facility, the entity
214	responsible for the jail or facility shall ensure that a DNA
215	sample is promptly secured and transmitted to the department.
216	Personnel at the jail, correctional facility, or juvenile
217	facility shall collect the DNA samples as part of the regular
218	processing of qualifying offenders committed to the jail or
219	facility.
220	(e)  If a qualifying offender is not incarcerated following
221	conviction, that offender may not be released from the custody
222	of the court at the time of sentencing or released pursuant to a
223	bond or surety until the DNA sample required by this section has
224	been taken by the sheriff or his or her designee. The sheriff
225	shall secure, process, and transmit the DNA sample to the
226	department in a timely manner.
227	(7)  REASONABLE FORCE.--Duly authorized law enforcement and
228	corrections personnel may employ reasonable force in cases where
229	a qualified offender refuses to provide a DNA sample required
230	under this section, and no such employee shall be civilly or
231	criminally liable for the use of such reasonable force.
232	(8)  OUT-OF-STATE OFFENDERS.--Any qualifying offender who
233	is:
234	(a)  Transferred to this state under the Interstate Compact
235	on Juveniles, part XIII of chapter 985, for a felony offense or
236	attempted felony offense, or
237	(b)  Accepted under Article IV of the Interstate
238	Corrections Compact, part III of chapter 941, for a felony
239	offense or attempted felony offense,
240
241	shall provide a DNA sample pursuant to this section to the
242	entity responsible for supervision of the offender, who shall
243	ensure that the DNA sample is collected in a manner approved by
244	the department and promptly secured and transmitted to the
245	department.
246	(9)  COLLECTION; LIABILITY.--
247	(a)  The collection of DNA samples may be performed by any
248	person using a collection kit approved by the department as
249	directed in the kit or pursuant to other procedures approved by
250	or acceptable to the department.
251	(b)  Any person who collects or assists in the collection
252	of a DNA sample is not civilly or criminally liable if a
253	collection kit provided or approved by the department is used
254	and the collection is done as directed in the kit, in a manner
255	approved by the department, or is performed in an otherwise
256	reasonable manner.
257	(10)  SAMPLES.--The department will provide the DNA sample
258	collection kits, labels, or other appropriate containers and
259	instructions for the collection of the DNA samples. After
260	collection, the DNA samples shall be forwarded to the department
261	for analysis to determine genetic markers and characteristics
262	for the purpose of individual identification of the person
263	submitting the sample.
264	(a)  At minimum, the following information must be included
265	with each submission:
266	1.  The qualifying offender's last name, first name, date
267	of birth, race, gender, and State Identification (SID) number if
268	known.
269	2.  The statute number of each offense charged.
270	3.  The collecting agency's name and address.
271	4.  The name and telephone number of the person performing
272	the collection of the DNA sample or witnessing the collection of
273	the sample.
274	(b)  If a DNA sample submitted to the department under this
275	section cannot be used by the department in the manner and for
276	the purposes required by this section, the department may
277	require that another DNA sample be obtained.
278	(11)  COURT ORDERS; COSTS.--The sentencing court shall
279	include in the judgment order for a qualifying offender a
280	provision requiring collection of a DNA sample from the
281	defendant in a manner consistent with this section.
282	(a)  Unless a convicted person has been declared indigent
283	by the court, the convicted person shall pay the actual costs of
284	collecting the approved biological specimens required under this
285	section.
286	(b)  If the order of a sentencing court fails to order a
287	qualifying offender to submit a DNA sample as mandated by this
288	section, the prosecutor may seek an amended order from the
289	sentencing court requiring submission of a DNA sample in
290	compliance with this section. In the alternative, the
291	department, the Department of Corrections, a law enforcement
292	agency, or a prosecutor may apply to the appropriate circuit
293	court with jurisdiction for an order authorizing the seizure of
294	the qualifying offender for the purpose of securing the required
295	DNA sample.
296	1.  The court shall issue the order upon a showing of
297	probable cause.
298	2.  Following issuance of the order, the DNA sample shall
299	be collected in a reasonable manner and the qualifying offender
300	shall be released unless there is cause to justify retaining the
301	offender in custody.
302	(c)  Failure by a law enforcement agency or other entity
303	involved in collection of DNA samples under this section to
304	strictly comply with this section or to abide by a statewide
305	protocol for collecting DNA samples is not grounds for
306	challenging the validity of the collection or the use of a DNA
307	sample in court and evidence based upon or derived from the
308	collected DNA sample may not be excluded by a court.
309	(d)  The detention, arrest, or conviction of a person based
310	upon a database match or database information will not be
311	invalidated if it is later determined that the sample was
312	obtained or placed in the database by mistake.
313	(e)  All DNA samples submitted to the department for any
314	reason shall be retained in the statewide DNA database and may
315	be used for all lawful purposes as provided in this section.
316	(12)  ANALYSIS OF DNA SAMPLES.--
317	(a)  The department shall specify procedures for the
318	collection, submission, identification, analysis, storage, and
319	disposition of the DNA samples and DNA records collected under
320	this section. These procedures shall also ensure compliance with
321	national quality assurance standards so that the DNA records may
322	be accepted into the national DNA database.
323	(b)  The analyses of DNA samples collected under this
324	section shall be used only for law enforcement identification
325	purposes or to assist in the recovery or identification of human
326	remains or missing persons and may not be used for
327	identification of any medical or genetic condition.
328	(c)  When completed, the results of DNA analysis shall be
329	entered into the statewide DNA database maintained and
330	administered by the department for such purpose, as provided in
331	this section.
332	(13)  RESULTS.--The results of a DNA analysis and the
333	comparison of analytic results shall be released only to
334	criminal justice agencies as defined in s. 943.045(10), at the
335	request of the agency. Otherwise, such information is
336	confidential and exempt from the provisions of s. 119.07(1) and
337	s. 24(a), Art. I of the State Constitution.
338	(14)  OFFENSES AND PENALTIES.--
339	(a)  Any person subject to the requirements of this section
340	who willfully refuses to provide a DNA sample commits a
341	misdemeanor of the second degree, punishable as provided in s.
342	775.082 or s. 775.083.
343	(b)  Any person who:
344	1.  Knowingly or intentionally discloses a DNA record,
345	including the results of a DNA analysis, to a person or agency
346	other than one authorized to have access to such records under
347	this section;
348	2.  Knowingly or intentionally uses or receives DNA
349	records, including the results of DNA analysis, for purposes
350	other than those authorized under this section; or
351	3.  Knowingly or intentionally tampers or attempts to
352	tamper with any DNA sample, the result of any analysis of a DNA
353	sample, or a DNA sample collection container
354
355	commits a felony of the third degree, punishable as provided in
356	s. 775.082, s. 775.083, or s. 775.084.
357	Section 3.  Paragraph (a) of subsection (2) of section
358	760.40, Florida Statutes, is amended to read:
359	760.40  Genetic testing; informed consent; confidentiality;
360	penalties; notice of use of results.--
361	(2)(a)  Except for purposes of criminal prosecution, except
362	for purposes of determining paternity as provided in s. 409.256
363	or s. 742.12(1), and except for purposes of acquiring specimens
364	from persons convicted of certain offenses or as otherwise
365	provided in s. 943.325, DNA analysis may be performed only with
366	the informed consent of the person to be tested, and the results
367	of such DNA analysis, whether held by a public or private
368	entity, are the exclusive property of the person tested, are
369	confidential, and may not be disclosed without the consent of
370	the person tested. Such information held by a public entity is
371	exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I
372	of the State Constitution.
373	Section 4.  Subsection (1) of section 948.014, Florida
374	Statutes, is amended to read:
375	948.014  Requirement to submit to drawing of blood or other
376	biological specimens.--
377	(1)  As a condition of probation, community control, or any
378	other court-ordered community supervision, the court shall order
379	offenders order persons convicted of offenses specified in s.
380	943.325 to submit to the drawing of the blood or other
381	biological specimens when required under s. 943.325 as
382	prescribed in that section as a condition of the probation,
383	community control, or other court-ordered community supervision.
384	Section 5.  This act shall take effect July 1, 2009.

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