Florida Senate - 2009 SB 2276
By Senator Oelrich
14-01516B-09 20092276__
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
4 legislative intent; providing definitions; providing a
5 phase-in schedule whereby persons arrested for
6 specified felony offenses will be required to provide
7 DNA samples to the Department of Law Enforcement until
8 all persons arrested for felony offenses will be
9 required to provide such samples; requiring reports;
10 providing for a statewide automated personal
11 identification system capable of classifying,
12 matching, and storing analyses of DNA and other data;
13 providing for access; specifying duties of the
14 department; providing that the database may contain
15 DNA for certain types of samples; specifying offenders
16 from whom DNA is to be collected; authorizing the use
17 of reasonable force to collect samples; providing an
18 exemption from liability for use of such force;
19 providing for collection of samples from specified
20 offenders from out of state; requiring the department
21 to provide sample containers; providing requirements
22 for information to be submitted with each sample;
23 providing for court orders for samples; authorizing
24 prosecutors to seek court orders in certain
25 circumstances; providing that a convicted person shall
26 pay the actual costs of collecting the approved
27 biological specimens unless declared indigent;
28 providing that certain failures to strictly comply
29 with statute or protocol may not provide grounds for
30 challenging the validity of the collection or the use
31 of a DNA sample in court and evidence based upon or
32 derived from the collected DNA sample may not be
33 excluded by a court; providing that the detention,
34 arrest, or conviction of a person based upon a
35 database match or database information will not be
36 invalidated if it is later determined that the sample
37 was obtained or placed in the database by mistake;
38 providing for retention of samples; providing for
39 analysis of samples; requiring that DNA analysis and
40 the comparison of analytic results shall be released
41 only to criminal justice agencies; providing a public
42 records exemption for such information; prohibiting
43 willfully refusing to provide a DNA sample; providing
44 penalties; prohibiting specified offenses relating to
45 disclosing DNA records, using records without
46 authorization, or tampering with DNA samples or
47 analysis results; providing penalties; amending ss.
48 760.40 and 948.014, F.S.; conforming provisions to
49 changes made by this act; providing an effective date.
50
51 Be It Enacted by the Legislature of the State of Florida:
52
53 Section 1. This act may be cited as the “DNA Database Act.”
54 Section 2. Section 943.325, Florida Statutes, is amended to
55 read:
56 (Substantial rewording of section. See
57 s. 943.325, F.S., for present text)
58 943.325 DNA database.—
59 (1) LEGISLATIVE INTENT.—
60 (a) The Legislature finds that DNA databases are important
61 tools in criminal investigations, in the exclusion of
62 individuals who are the subject of criminal investigations or
63 prosecutions and in detecting recidivist acts. It is the policy
64 of this state to assist federal, state, and local criminal
65 justice and law enforcement agencies in the identification and
66 detection of individuals in criminal investigations and the
67 identification and location of missing and unidentified persons.
68 Therefore, it is in the best interests of the citizens of this
69 state to establish a statewide DNA database containing DNA
70 samples submitted by persons convicted of or arrested for felony
71 offenses and convicted of certain misdemeanor offenses.
72 Additionally, the statewide DNA database shall include DNA
73 records and samples necessary for the identification of missing
74 persons and unidentified human remains, including DNA samples
75 voluntarily contributed by relatives of missing persons.
76 (b) The Legislature also finds that upon establishment of
77 the Florida DNA database a match between casework evidence DNA
78 samples from a criminal investigation and DNA samples from a
79 state or federal DNA database of certain offenders may be used
80 to find probable cause for the issuance of a warrant to obtain
81 the DNA sample from an offender.
82 (2) DEFINITIONS.—As used in this section, the term:
83 (a) “Arrested” means apprehended or physically taken into
84 custody, resulting in the submission of arrest fingerprints to
85 the department, pursuant to s. 943.051.
86 (b) “CODIS” means the Federal Bureau of Investigation’s
87 Combined DNA Index System that allows the storage and exchange
88 of DNA records submitted by federal, state, and local forensic
89 DNA laboratories.
90 (c) “Convicted” means a finding of guilt by a court of
91 competent jurisdiction, or entry of a plea of nolo contendere or
92 guilty, or, in the case of a juvenile, the finding of
93 delinquency, regardless of adjudication.
94 (d) “DNA” means deoxyribonucleic acid. DNA is located in
95 the cells and provides an individual’s personal genetic
96 blueprint. DNA encodes genetic information that is the basis of
97 human heredity and forensic identification.
98 (e) “DNA record” means all information associated with the
99 collection and analysis of a person’s DNA sample, including the
100 distinguishing characteristics collectively referred to as a DNA
101 profile.
102 (f) “DNA sample” means a buccal or other approved
103 biological specimen capable of undergoing DNA analysis.
104 (g) “Qualifying offender” means any person, including
105 juveniles and adults committed to a county jail or committed to
106 or under the supervision of the Department of Corrections or the
107 Department of Juvenile Justice, including persons incarcerated
108 in a private correctional institution operated under contract
109 pursuant to s. 944.105, and persons transferred to this state
110 under the Interstate Compact on Juveniles, part XIII of chapter
111 985, or accepted under Article IV of the Interstate Corrections
112 Compact, part III of chapter 941, and any person required to
113 register as a sexual offender or sexual predator as defined in
114 s. 943.0435, s. 775.21, s. 944.607, or s. 985.4815, who is:
115 1. Convicted of any felony offense or attempted felony
116 offense or a similar offense in another jurisdiction, or any
117 misdemeanor violation of s. 784.048, s. 787.025, s. 794.027, s.
118 800.02, s. 800.03, s. 810.14, s. 847.011, s. 847.013, s.
119 847.0135, or s. 877.26, or an offense that was found, pursuant
120 to s. 874.04, to have been committed for the purpose of
121 benefiting, promoting, or furthering the interests of a criminal
122 gang as defined in s. 874.03; or
123 2. Arrested for any felony offense committed in this state,
124 under the following conditions:
125 a. Subject to sufficient funding appropriations passed by
126 the Legislature and approved by the Governor for each phase of
127 expansion of DNA sample collection in this sub-subparagraph, and
128 after determination and official notification to submitting
129 agencies by the department that it has sufficient
130 infrastructure, facilities, and personnel to receive such
131 samples, all persons arrested for or charged with any of the
132 following felony offenses shall be required to submit a DNA
133 sample at the time they are booked into a jail, correctional
134 facility, or juvenile facility:
135 (I) Beginning January 1, 2011, all felonies defined by
136 chapters 782, 784, 794, and 800.
137 (II) Beginning January 1, 2013, all felonies defined by
138 chapters 810 and 812.
139 (III) Beginning January 1, 2015, all felonies defined by
140 chapters 787 and 790.
141 (IV) Beginning January 1, 2017, all felonies defined by
142 chapter 893.
143 (V) Beginning January 1, 2019, all felony offenses.
144 b. The department may reject submissions of samples
145 received for any felony arrests prior to funding of any phase
146 set forth in this subparagraph or received prior to the
147 department’s official notification to the submitting agency as
148 provided in this section.
149 c. On or before February 1, 2010, and by February 1 of each
150 even-numbered year thereafter through 2018, the department shall
151 provide the Legislature with a report listing the funding,
152 infrastructure, facility, and personnel requirements for the DNA
153 database and DNA evidentiary analysis for the expansion phase
154 scheduled for the following year.
155 (3) STATEWIDE DNA DATABASE.—The department, through the
156 statewide criminal laboratory analysis system shall establish,
157 implement, and maintain a statewide automated personal
158 identification system capable of, but not limited to,
159 classifying, matching, and storing analyses of DNA and other
160 biological molecules and related data. The department shall be
161 the administrator of the statewide DNA database. All accredited
162 local government crime laboratories within the state shall have
163 access through CODIS to the statewide DNA database in accordance
164 with the rules and agreements established by the department.
165 (4) DUTIES.—The department shall:
166 (a) Receive, process, and store DNA and the data derived
167 therefrom furnished pursuant to this section.
168 (b) Collect, process, maintain, and disseminate information
169 and records as provided by this section.
170 (c) Strive to maintain and disseminate only accurate and
171 complete records.
172 (d) Participate in the national DNA database program
173 administered by the Federal Bureau of Investigation.
174 (e) Provide for liaison with the Federal Bureau of
175 Investigation and other criminal justice agencies relating to
176 the state’s participation in the CODIS program and the national
177 DNA index system.
178 (f) Adopt rules specifying the proper procedure, including
179 requisite identification information, for state and local law
180 enforcement and correctional agencies to collect and submit DNA
181 samples pursuant to this section.
182 (5) SAMPLES.—The statewide DNA database may contain DNA
183 data obtained from the following types of biological samples:
184 (a) Crime scene samples.
185 (b) Samples obtained from qualifying offenders required by
186 this section to provide a biological sample for DNA analysis and
187 inclusion in the statewide DNA database.
188 (c) Samples lawfully obtained during the course of a
189 criminal investigation.
190 (d) Samples from deceased victims or suspects that were
191 lawfully obtained during the course of a criminal investigation.
192 (e) Samples from unidentified human remains.
193 (f) Samples from persons reported missing.
194 (g) Samples voluntarily contributed by relatives of missing
195 persons.
196 (h) Other samples approved by the department.
197 (6) COLLECTION OF DNA SAMPLES FROM OFFENDERS.—
198 (a) Any qualifying offender, who is:
199 1. Arrested in this state;
200 2. Incarcerated in this state; or
201 3. On probation, community control, parole, conditional
202 release, control release, or any other type of court-ordered
203 supervision in this state
204
205 shall be required to submit a DNA sample to a department
206 designated facility.
207 (b) Arrested qualifying offenders must submit a DNA sample
208 at the time they are booked into a jail, correctional facility,
209 or juvenile facility.
210 (c) Incarcerated persons and those in the custody of the
211 Department of Juvenile Justice must submit required DNA samples
212 not less than 45 days before their presumptive date of release
213 from such incarceration or commitment.
214 (d) Upon the conviction of any qualifying offender which
215 results in the commitment of the offender to a county jail,
216 correctional facility, or juvenile facility, the entity
217 responsible for the jail or facility shall ensure that a DNA
218 sample is promptly secured and transmitted to the department.
219 Personnel at the jail, correctional facility, or juvenile
220 facility shall collect the DNA samples as part of the regular
221 processing of qualifying offenders committed to the jail or
222 facility.
223 (e) If a qualifying offender is not incarcerated following
224 conviction, that offender may not be released from the custody
225 of the court at the time of sentencing or released pursuant to a
226 bond or surety until the DNA sample required by this section has
227 been taken by the sheriff or his or her designee. The sheriff
228 shall secure, process, and transmit the DNA sample to the
229 department in a timely manner.
230 (7) REASONABLE FORCE.—Duly authorized law enforcement and
231 corrections personnel may employ reasonable force in cases where
232 a qualified offender refuses to provide a DNA sample required
233 under this section, and no such employee shall be civilly or
234 criminally liable for the use of such reasonable force.
235 (8) OUT-OF-STATE OFFENDERS.—Any qualifying offender who is:
236 (a) Transferred to this state under the Interstate Compact
237 on Juveniles, part XIII of chapter 985, for a felony offense or
238 attempted felony offense; or
239 (b) Accepted under Article IV of the Interstate Corrections
240 Compact, part III of chapter 941, for a felony offense or
241 attempted felony offense
242
243 shall provide a DNA sample pursuant to this section to the
244 entity responsible for supervision of the offender, who shall
245 ensure that the DNA sample is collected in a manner approved by
246 the department and promptly secured and transmitted to the
247 department.
248 (9) COLLECTION; LIABILITY.—
249 (a) The collection of DNA samples may be performed by any
250 person using a collection kit approved by the department as
251 directed in the kit or pursuant to other procedures approved by
252 or acceptable to the department.
253 (b) Any person who collects or assists in the collection of
254 a DNA sample is not civilly or criminally liable if a collection
255 kit provided or approved by the department is used and the
256 collection is done as directed in the kit, in a manner approved
257 by the department, or is performed in an otherwise reasonable
258 manner.
259 (10) SAMPLES.—The department will provide the DNA sample
260 collection kits, labels, or other appropriate containers and
261 instructions for the collection of the DNA samples. After
262 collection, the DNA samples shall be forwarded to the department
263 for analysis to determine genetic markers and characteristics
264 for the purpose of individual identification of the person
265 submitting the sample.
266 (a) At minimum, the following information must be included
267 with each submission:
268 1. The qualifying offender’s last name, first name, date of
269 birth, race, gender, and State Identification (SID) number if
270 known.
271 2. The statute number of each offense charged.
272 3. The collecting agency’s name and address.
273 4. The name and telephone number of the person performing
274 the collection of the DNA sample or witnessing the collection of
275 the sample.
276 (b) If a DNA sample submitted to the department under this
277 section cannot be used by the department in the manner and for
278 the purposes required by this section, the department may
279 require that another DNA sample be obtained.
280 (11) COURT ORDERS; COSTS.—The sentencing court shall
281 include in the judgment order for a qualifying offender a
282 provision requiring collection of a DNA sample from the
283 defendant in a manner consistent with this section.
284 (a) Unless a convicted person has been declared indigent by
285 the court, the convicted person shall pay the actual costs of
286 collecting the approved biological specimens required under this
287 section.
288 (b) If the order of a sentencing court fails to order a
289 qualifying offender to submit a DNA sample as mandated by this
290 section, the prosecutor may seek an amended order from the
291 sentencing court requiring submission of a DNA sample in
292 compliance with this section. In the alternative, the
293 department, the Department of Corrections, a law enforcement
294 agency, or a prosecutor may apply to the appropriate circuit
295 court with jurisdiction for an order authorizing the seizure of
296 the qualifying offender for the purpose of securing the required
297 DNA sample.
298 1. The court shall issue the order upon a showing of
299 probable cause.
300 2. Following issuance of the order, the DNA sample shall be
301 collected in a reasonable manner and the qualifying offender
302 shall be released unless there is cause to justify retaining the
303 offender in custody.
304 (c) Failure by a law enforcement agency or other entity
305 involved in collection of DNA samples under this section to
306 strictly comply with this section or to abide by a statewide
307 protocol for collecting DNA samples is not grounds for
308 challenging the validity of the collection or the use of a DNA
309 sample in court and evidence based upon or derived from the
310 collected DNA sample may not be excluded by a court.
311 (d) The detention, arrest, or conviction of a person based
312 upon a database match or database information will not be
313 invalidated if it is later determined that the sample was
314 obtained or placed in the database by mistake.
315 (e) All DNA samples submitted to the department for any
316 reason shall be retained in the statewide DNA database and may
317 be used for all lawful purposes as provided in this section.
318 (12) ANALYSIS OF DNA SAMPLES.—
319 (a) The department shall specify procedures for the
320 collection, submission, identification, analysis, storage, and
321 disposition of the DNA samples and DNA records collected under
322 this section. These procedures shall also ensure compliance with
323 national quality assurance standards so that the DNA records may
324 be accepted into the national DNA database.
325 (b) The analyses of DNA samples collected under this
326 section shall be used only for law enforcement identification
327 purposes or to assist in the recovery or identification of human
328 remains or missing persons and may not be used for
329 identification of any medical or genetic condition.
330 (c) When completed, the results of DNA analysis shall be
331 entered into the statewide DNA database maintained and
332 administered by the department for such purpose, as provided in
333 this section.
334 (13) RESULTS.—The results of a DNA analysis and the
335 comparison of analytic results shall be released only to
336 criminal justice agencies as defined in s. 943.045(10), at the
337 request of the agency. Otherwise, such information is
338 confidential and exempt from the provisions of s. 119.07(1) and
339 s. 24(a), Art. I of the State Constitution.
340 (14) OFFENSES AND PENALTIES.—
341 (a) Any person subject to the requirements of this section
342 who willfully refuses to provide a DNA sample commits a
343 misdemeanor of the second degree, punishable as provided in s.
344 775.082 or s. 775.083.
345 (b) Any person who:
346 1. Knowingly or intentionally discloses a DNA record,
347 including the results of a DNA analysis, to a person or agency
348 other than one authorized to have access to such records under
349 this section;
350 2. Knowingly or intentionally uses or receives DNA records,
351 including the results of DNA analysis, for purposes other than
352 those authorized under this section; or
353 3. Knowingly or intentionally tampers or attempts to tamper
354 with any DNA sample, the result of any analysis of a DNA sample,
355 or a DNA sample collection container
356
357 commits a felony of the third degree, punishable as provided in
358 s. 775.082, s. 775.083, or s. 775.084.
359 Section 3. Paragraph (a) of subsection (2) of section
360 760.40, Florida Statutes, is amended to read:
361 760.40 Genetic testing; informed consent; confidentiality;
362 penalties; notice of use of results.—
363 (2)(a) Except for purposes of criminal prosecution, except
364 for purposes of determining paternity as provided in s. 409.256
365 or s. 742.12(1), and except for purposes of acquiring specimens
366 from persons convicted of certain offenses or as otherwise
367 provided in s. 943.325, DNA analysis may be performed only with
368 the informed consent of the person to be tested, and the results
369 of such DNA analysis, whether held by a public or private
370 entity, are the exclusive property of the person tested, are
371 confidential, and may not be disclosed without the consent of
372 the person tested. Such information held by a public entity is
373 exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I
374 of the State Constitution.
375 Section 4. Subsection (1) of section 948.014, Florida
376 Statutes, is amended to read:
377 948.014 Requirement to submit to drawing of blood or other
378 biological specimens.—
379 (1) As a condition of probation, community control, or any
380 other court-ordered community supervision, the court shall order
381 offenders order persons convicted of offenses specified in s.
382 943.325 to submit to the drawing of the blood or other
383 biological specimens when required under s. 943.325 as
384 prescribed in that section as a condition of the probation,
385 community control, or other court-ordered community supervision.
386 Section 5. This act shall take effect July 1, 2009.