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 |
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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. |