Legislature(1999 - 2000)
04/14/2000 01:30 PM House JUD
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* first hearing in first committee of referral
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HB 294 - DNA TESTING & REGISTRATION Number 0030 CHAIRMAN KOTT announced the first order of business is HOUSE BILL NO. 294, "An Act relating to violations of an order to submit to deoxyribonucleic acid (DNA) testing, to court orders and conditions of parole to collect samples for DNA testing, to removal of material from the DNA identification registration system; and to the collection and processing of samples from certain burglary perpetrators for the DNA identification registration system; and providing for an effective date." Number 0078 DEL SMITH, Deputy Commissioner, Department of Public Safety, said he had testified a couple of weeks ago on HB 294 when Representative Croft expressed concerns that an individual had to obtain a court order in order to have deoxyribonucleic acid (DNA) removed if the individual was found not guilty or the conviction was reversed. He noted that along with Anne Carpeneti, Department of Law, they had developed a potential amendment that would hopefully address Representative Croft's concerns. He explained that HB 294 is a bill that expands requirements of who must give DNA to include those who commit felony burglary and the reason for that is that statistics indicate that nationally 52 percent of people who have committed burglaries also committed violent crimes subsequently. He commented that if law enforcement has the DNA earlier from felony convictions then law enforcement might be able to prevent or solve some violent crimes sooner. MR. SMITH mentioned that HB 294 also expands who [has authority to] take a DNA sample as technology has changed since the original bill was written in 1995 when the department just took a blood [sample]. Now the department wants to expand the 1995 law to allow a juvenile or adult correctional probation officer, a probation officer, a parole officer or a peace officer to take a DNA sample. He repeated that those are the primary changes in HB 294 and the bill would be retroactive to January 1, 1996 for convictions or felonies that have occurred since that time. Number 0274 CHAIRMAN KOTT asked how oral samples are taken. MR. SMITH replied that originally a DNA sample required blood and that is why the original law stipulated that a medical person or health care professional had to take the sample. However, technology has evolved rather quickly since 1995 and the sample now can be taken in a non-intrusive manner with an oral swab which is placed in a container that is marked and given to the lab. CHAIRMAN KOTT inquired as to what kind of container is used to transport the swab sample and what is the time line, if there is one, for ensuring that the DNA sample is transmitted, received, and analyzed before it has lost its [viability]. MR. SMITH answered that pursuant to the 1995 creation of the registry the department had been freezing any sample collections, blood or otherwise, in the lab. However, in just the last several months the department has begun processing those samples. He informed the committee that frozen samples last indefinitely. He explained that the samples are taken out [of the freezer], processed, and the DNA profile is created. He observed that an officer, a parole officer, or somebody else can take a DNA sample, put it into a small container, get it to the lab, and then the sample would be frozen until there was time to process it. Number 0364 CHAIRMAN KOTT asked if Mr. Smith could amplify the rationale for being retroactive to January 1, 1996. MR. SMITH replied that January 1, 1996, is when the department started taking all of the DNA samples that are currently in the DNA database for convictions and violent crimes; it seemed to make sense that the department would collect [samples] for convictions from that period if DNA samples were to be expanded to include burglary. However, he recognized that the department is concerned about making HB 294 retroactive, but those convictions presumably have not gone away since 1996. If they [those convictions] have gone away then the individual is no longer convicted and would not be subject to HB 294. REPRESENTATIVE CROFT asked if DNA samples collected in 1996 are stored somewhere. MR. SMITH replied that samples taken in 1996 to the present are stored at the crime lab in a refrigerator freezer so that they do not deteriorate. Number 0450 REPRESENTATIVE CROFT stated that HB 294 expands [DNA collection] authority to a different class of crime (burglaries). Therefore, he inquired as to how the department has DNA samples in its possession for this class of crime if the department did not have authority to collect [DNA samples] from this class of crime in 1996. MR. SMITH answered that is true. However, if the legislature were to pass HB 294 and make it retroactive for burglary convictions since January 1, 1996, the department would have to make contact with those people who had been convicted since that date and attempt to make the collection. REPRESENTATIVE CROFT inquired as to what happens if convicted people refuse [to allow DNA collection]. He assumed that the department has the power to force collection of DNA samples. MR. SMITH replied that refusal under the current law to give a sample is a misdemeanor crime, however, he cannot anticipate a situation where the department would hold a convicted person down and forcibly take a DNA sample. Number 0528 REPRESENTATIVE MURKOWSKI asked Mr. Smith to assume that he has a burglary that goes back to 1996 and then asked if he would really retroactively track down convicted burglars and try to obtain a DNA sample. MR. SMITH suggested that it may be that some of these individuals are incarcerated now and thus would be easy to find. He emphasized that the law does give the department authority to go back and find these individuals whether they are on probation or parole and request a sample. Number 0585 CHAIRMAN KOTT asked if the department was doing DNA tests in 1996. MR. SMITH explained that the department started taking the first samples in 1996, but did not process any of those samples because when the original law, HB 27, passed technology was in flux. He informed the committee that the department had just obtained staff and processing equipment last year under a federal grant to start processing and loading into a national combined database called CODIS (Combined DNA Index System). He remarked that technology had moved from one in a couple of million discrimination about who the individual was to today's technology where one in one billion is the current level. He added that the department had waited until last year to start processing because the department wanted to get the latest technology and national standard. Number 0685 BLAIR McCUNE, Deputy Director, Alaska Public Defender Agency, commented that it is a good idea to allow peace officers and juvenile adult corrections officers to collect samples rather than just medical personnel since the sample can be easily taken by a swab. However, he noted that his agency is concerned about the change made to Section 6 which he has not seen yet. He explained that his agency does not like the idea of a required court order to destroy the material or get the material out of the hands of the Department of Public Safety (DPS) if someone is found not guilty or acquitted. He commented that the Alaska Public Defender Agency does not represent people in criminal proceedings so the agency would not have a lawyer to help request a court order since a court order is usually done by an administrative proceeding through DPS directly. Therefore, he mentioned that he was glad to hear that there are perhaps some changes to that section and he would be happy to review them. MR. McCUNE emphasized that the main problem for the agency is the bill's expansion into burglary. He estimated that in Alaska annually there are roughly 900 people arrested for burglary, which is a huge additional amount of samples that would have to be collected and stored. He indicated that HB 294 is an invasion of privacy, but he guessed that the theory is that people who commit burglary also may commit further offenses, namely, sexual offenses. However, many youthful offenders commit burglaries and are successfully rehabilitated and do not commit further offenses. Therefore, he indicated that in view of the problems that DPS acknowledges they have in testing the samples already in their possession, the agency does not see how having additional samples collected is a wise idea. Number 0883 CHAIRMAN KOTT informed the committee that the amendment that has been offered would change a little bit of the language in Section 6 of HB 294 which would then read, if the amendment were approved, "The Department of Public Safety shall upon receipt of a court order destroy the material in the system relating to a person. The court shall issue the order if it determines that..." and the rest of the language is the same. Therefore, the amendment removes the words "issued at the request of a person whose DNA has been collected under (b) of this section." MR. McCUNE said that the problem he had with HB 294 is that he is not sure how to obtain a court order. For example, he asked if someone wold have to file a law suit with the court to obtain a court order because the court would not have jurisdiction in the criminal case to [issue a court order on its own]. He noted that sometimes the court can issue orders when cases are dismissed for returned evidence which has been admitted. However, he explained that it is unclear to the agency whether Section 6 requires a separate civil action. Number 0992 REPRESENTATIVE MURKOWSKI turned to Mr. McCune's testimony that there had been problems with testing samples and so it was his recommendation that the legislature did not need to add to the numbers that the lab would be testing. She asked George Taft if the Public Safety crime laboratory has had problems with DNA testing samples. GEORGE TAFT, Director, Scientific Crime Detection Laboratory, Department of Public Safety, testified via teleconference from Anchorage. He acknowledged that the lab has had problems in funding the testing. However, he noted that today he had signed a grant opportunity to get all of those samples analyzed by contracting out in the very near future. From a National Institute of Justice (NIJ) grant, he expected to get all of those samples analyzed expeditiously, probably within the next two or three months. Number 1040 REPRESENTATIVE MURKOWSKI indicated her understanding that the problems experienced by the lab were funding problems rather than problems with how the lab is collecting or testing. MR. TAFT replied that her understanding was correct. REPRESENTATIVE MURKOWSKI inquired as to the shelf life of these samples that the lab collects. MR. TAFT answered that these are dry, frozen samples and can be analyzed 400 years later. REPRESENTATIVE ROKEBERG asked if the sample could be reduced after it has been analyzed into some type of film or photographic profile so that the lab does not have to keep the sample. MR. TAFT replied that the lab does have a profile. However, when a sample is matched in CODIS then the lab has to re-examine the sample to make sure that it does in fact match, which is the reason for keeping samples. LEANE STRICKLAND, Criminalist IV, Scientific Crime Detection Laboratory, Department of Public Safety, remarked that the lab does not want to destroy any evidence that has been analyzed because technology changes. She reminded the committee that technology has changed over the last five years and with changing technology the lab wants to continue to be able to analyze the samples as well as have samples if an analysis by an outside agency is requested for the defense. Number 1152 CHAIRMAN KOTT asked if the lab currently does DNA testing. MR. TAFT replied in the affirmative. CHAIRMAN KOTT asked if the samples that the lab will out source are from the lab's backlog. CHRIS BEHEIM, Criminalist IV, Scientific Crime Detection Laboratory, Department of Public Safety, observed that the grant is just for the backlog of convicted offender samples. He informed the committee that recently $15 million was appropriated by the federal government to address the nationwide backlog of convicted offender samples. CHAIRMAN KOTT asked if Mr. Beheim could give the committee an idea of how many samples are on backlog. MR. BEHEIM answered that at the present time, since 1996, the lab has collected approximately 1900 samples and has analyzed 350 of those in house using the latest technology. However, he anticipated that the grant would pay for the remaining backlog. CHAIRMAN KOTT inquired as to where the outside analysis will be done. Number 1230 MR. BEHEIM explained that outside analysis will be put out to competitive bid to an outside lab that meets quality assurance guidelines specified by the DNA Advisory Board and strict accreditation guidelines. CHAIRMAN KOTT asked if Mr. Beheim was aware of any qualified labs in Alaska. MR. BEHEIM answered that there are none at this time. CHAIRMAN KOTT inquired as to how long it takes to analyze one sample. MR. BEHEIM replied that the information that he is receiving from the grant people is that the laboratories who will be bidding are high production labs which, upon receipt of the samples, are capable of turning out samples in a matter of weeks. CHAIRMAN KOTT asked Mr. Beheim if he could give the committee an idea of what it costs for each analysis. MR. BEHEIM answered that NIJ allows $50 for each sample and he had just heard from them that samples can be processed for as little as $35 for each sample on a competitive bid for convicted offender samples. Number 1301 REPRESENTATIVE CROFT surmised that if there are about 1,000 samples of which the lab has analyzed 350, then there should be a backlog of 650 samples. MR. BEHEIM specified that there are approximately 1,600 backlog samples. REPRESENTATIVE CROFT related his understanding that Mr. McCune had said there were about 300 burglaries each year. He asked if the backlog at the lab had been built up over the last four years since 1996. MR. BEHEIM answered yes. Number 1392 REPRESENTATIVE CROFT inquired as to how many samples the lab could analyze each year. MR. BEHEIM anticipated that the lab could probably analyze 100 samples each month. Although it is much more economical to contract out to a private lab capable of doing high volume using robots, the crime lab does case-related analysis which is much more time consuming and not suitable for contracting out. He noted that private labs wanted about $1,000, which does not include court testimony, for each case-related sample. Therefore, the whole purpose of the contract is to deal with convicted offender samples which are more adapted toward automation and the use of [robots]. He pointed out that nationwide there are approximately 750,000 samples that have been collected and need to be analyzed due to new technology, and the number is growing all the time. REPRESENTATIVE CROFT asked if [DPS's] fiscal note for the laboratory services component was zero due to the grant because if there are 300 new cases each year and they cost $1,000, then it is going to cost the state $300,000 each year to analyze samples. MR. BEHEIM replied that the 300 [new cases] each year would be additional convicted offenders if Alaska has that many burglaries. Those samples cost about $35 each to contract. He informed the committee that this is the first year grant money has been available and Congress has anticipated funding for the next number of years because of the great interest in the use of DNA technology to help solve crimes. REPRESENTATIVE CROFT acknowledged that although the collection is cheap at $35, the analysis is what costs money. MR. BEHEIM reiterated that analysis by a private lab set up with robotics and high volume is $35-$50. Number 1457 CHAIRMAN KOTT remarked that it would appear that the collection costs more than the analysis. He asked Mr. Taft what would become of NIJ grant money if HB 294 did not pass and the legislature did not authorize retroactivity for those 1,600 samples. MR. TAFT answered that the lab would not get the money unless the lab used it for analyzing convicted offender samples because the grant money is designated for [that] particular purpose. CHAIRMAN KOTT recognized that the grant money could only be used for analyzing convicted offender samples. He asked if the lab already had the grant or is it something for which the lab has to apply. Number 1499 MR. TAFT replied that he has the application ready to go and the deadline is May. REPRESENTATIVE CROFT asked if the committee had to add burglary to obtain the grant. MR. TAFT answered no. REPRESENTATIVE CROFT inquired as to what the lab had to do to obtain the grant. MR. TAFT replied that the lab does not have to do anything other than apply for the grant. He specified that the grant addresses the sample backlog that the lab already has on hand. REPRESENTATIVE CROFT surmised, then, that it does not matter to the federal government whether the Alaska State Legislature passes HB 294 or not, in terms of the grant. MR. TAFT agreed because the grant just addresses the current backlog and grant money available in the future will also pay for samples that are collected. Number 1558 MR. SMITH said he wanted to comment on the court order. He noted that he had never anticipated that someone would have to file suit to get evidence out of the court. He explained that the reason the department wanted a court order and required that the individual request it is because the individual is probably the most motivated person who would pursue procedure to make sure that evidence was returned to that non-convicted individual. He commented that he wants an audit trail of why the DNA sample disappeared, which a court order would provide for the department. It is a way to keep everything above board. CHAIRMAN KOTT indicated that he understood that in Mr. Smith's mind an individual would not have to litigate to regain possession of their DNA sample. MR. SMITH anticipated that if an individual was found not guilty or the conviction was reversed, the individual would contact the department or the district attorney and the authorities would ask the court to give the authorities an order to get rid of the DNA sample of that individual. He acknowledged that it had made sense for the individual to have some standing to go in and say that he/she wanted a court order. However, he had never anticipated that there would be a requirement for civil litigation, which does not make any sense to him. Number 1641 CHAIRMAN KOTT admitted that it did not make sense to him either. He asked Mr. McCune if he had heard Mr. Smith's remarks. Chairman Kott observed that Mr. McCune was gone. CANDACE BROWER, Parole Board Officer, Parole Board, Department of Corrections, urged the committee to consider the expansion of who is allowed to take DNA samples because it has been incumbent on the Department of Corrections (DOC) to collect the samples, however the narrow definition of medical personnel really limits who is able to do this in correctional facilities. She said that in view of the fiscal situation [DOC's] medical staff are stretched thin and the department would appreciate the flexibility to train correctional staff and probation officers to take samples. She echoed earlier testimony that taking DNA samples is a very simple process. She acknowledged that some are concerned about taking DNA samples and the privacy issue, but it is important to remember that DNA analysis also works to eliminate people from suspicion. She agreed that the effect of DNA analysis is double-edged. Number 1712 CHAIRMAN KOTT remarked that under the provisions of HB 294 correctional officers can conduct the test in correctional facilities. MS. BROWER answered yes, but reiterated that currently correctional officers cannot take DNA samples. CHAIRMAN KOTT inquired as to what kind of training she envisions. MS. BROWER informed the committee that DOC's medical staff has some authority to do some training of correctional officers for such things as dispensing medication. The training would be an in-house process. Number 1743 CHAIRMAN KOTT asked Ms. Brower to assume that one of her correctional officers took the sample with a swab, placed the swab in a container, and dropped it on the floor. He asked if the correctional officer would have to take an additional sample. MS. BROWER answered that she did not know. CHAIRMAN KOTT continued with the illustration and asked if the correctional officer did have to take an additional sample, would the prisoner be subject to a misdemeanor crime [for refusing to give a second DNA sample]. MS. BROWER replied that she did not have an answer to that either. Furthermore, she was unsure if the tests are fragile. CHAIRMAN KOTT commented that he was sure that rubber gloves must be put on and the area sanitized. He asked Mr. Taft to speak to the illustration about what would happen if a sample swab was dropped. He asked Mr. Taft if dropping a swab would necessitate taking another swab. MR. TAFT deferred to Ms. Strickland. Number 1813 MS. STRICKLAND replied that if someone dropped a swab she would recommend that they take another swab, however, testing at the lab is only going to react with DNA. She pointed out that the lab can determine if there is any problem with contamination. CHAIRMAN KOTT asked if the lab could use the existing first sample if the convicted defendant decided he/she did not want to give another sample. MS. STRICKLAND reiterated the recommendation to take another sample, however the first sample could be analyzed and it could be whether there additional DNA is present other than DNA from one individual. CHAIRMAN KOTT said maybe that is the answer. He related his understanding that a convicted individual would not be subject to another misdemeanor crime [for refusal to give another DNA sample] because the first sample could be analyzed. MS. STRICKLAND answered yes. CHAIRMAN KOTT remarked that it may be a little more difficult but he is sure that with today's technology it can be done. Number 1868 REPRESENTATIVE GREEN asked if tobacco or some other substance in the mouth would have an effect [on the sample]. He thought that other substances would have an effect, and therefore dropping a swab on the floor, unless the floor was extremely sterile, could contaminate the swab. MS. STRICKLAND agreed that dropping a swab on the floor is not what the lab would choose and in such a case the lab would hope that another sample would be collected. She reminded the committee that if additional DNA was present on the floor, it would be detected on the swab. Furthermore, as she had testified previously, it has been shown that there are some substances, such as tobacco, that can block the process wherein no DNA typing [occurs]. REPRESENTATIVE GREEN asked "then why not take two samples?" MS. STRICKLAND agreed that would be a good option. CHAIRMAN KOTT agreed that maybe two samples would be the answer. REPRESENTATIVE GREEN agreed with Chairman Kott and mentioned that normally both swabs would not be dropped. CHAIRMAN KOTT asked whether the person would have to give the second sample. REPRESENTATIVE GREEN suggested that the two swabs should be taken at the same time. CHAIRMAN KOTT remarked that this is something that can be worked out internally. He announced that there is an amendment on the table and he is not sure where it originated. Number 1945 MR. SMITH noted that the amendment developed as a result of concerns mentioned by Representative Croft during a hearing a couple of weeks ago. The department asked Ms. Carpeneti, Department of Law, to draft the amendment and the amendment was provided to Chairman Kott's staff yesterday just in case Chairman Kott wanted to consider it. REPRESENTATIVE MURKOWSKI offered Amendment 1 which read: Page 3, line 13: After "order" insert: "," Page 3, line 14: delete all material Page 3, line 15: delete "section," Page 3, line 15: delete "the [A]" and insert: "a" REPRESENTATIVE CROFT commented Amendment 1 is fine. CHAIRMAN KOTT related his understanding from Mr. Smith that although Amendment 1 will address Representative Croft's concern, Mr. Smith is neither partial nor impartial to it. Number 2013 REPRESENTATIVE CROFT indicated that he supported Amendment 1 and acknowledged that a court order should not be required at the request of a person but rather the court order should be part of a regular administrative process. He said he is not even sure a court order is needed but at least it should not be solely at the request of the person. He mentioned that he had considered an arrangement whereby the court would make a list each year of people who had been acquitted and have their records expunged. Number 2040 CHAIRMAN KOTT asked whether there was any objection to the adoption of Amendment 1. There being none, Amendment 1 was adopted. REPRESENTATIVE KERTTULA moved to delete everything [from HB 294] except those sections that allow the Department of Corrections to broaden its [authority] in regard to who can collect samples; thereby allowing correctional officers to collect samples as well as medical personnel. She said that HB 294 is just too great a step at this moment. Although the packet includes [information] that in other states there seems to be come correlation [between committing a burglary and progression on to a more violent crime], Representative Kerttula said she is not ready to take that step yet between burglars and offenders. CHAIRMAN KOTT called for an at-ease at 2:06 p.m. and called the meeting back to order at 2:07 p.m. Number 2106 REPRESENTATIVE KERTTULA clarified that her proposed amendment removes Sections 5, 7, and 8. She pointed out that in Section 8 there is an effective date [after which] people's court order to get their samples removed will not be honored. [Indisc.] MR. SMITH informed the committee that he would prefer to have HB 294 remain as it came into the committee. However, at a minimum, the expansion of DOC's ability to authorize the taking of samples by correctional and parole officers is critical. REPRESENTATIVE MURKOWSKI noted that the legislature had adopted this DNA identification system in 1995, and therefore she assumes that most of the other states have adopted similar registration systems. MR. SMITH replied that he believed that all 50 states have adopted DNA registration systems and Alaska is one of nine states that have signed on to the national system. Number 2181 REPRESENTATIVE MURKOWSKI asked where do the other states fall in terms of taking samples from burglars. MR. SMITH answered that there are several states which take samples from burglars. He informed the committee that in his research he had found that burglars were included [in DNA testing] based upon statistics which show that 52 percent of convicted burglars went on to commit and were caught for a violent crime later. Although he did not know how many states test burglars for DNA, he has heard that some states want to go as far as testing for DNA at the time of arrest. He thinks that is going too far. He noted that the department had retained DNA testing just for felony burglary convictions because the department sees a nexus between burglary and violent crimes. Number 2230 REPRESENTATIVE MURKOWSKI asked if the 52 percent figure is an Alaskan or national statistic. MR. SMITH clarified that the 52 percent figure is from Florida, Virginia, and a couple of other states; it is not an Alaskan statistic. MR. SMITH answered, in response to Representative Murkowski, that he was not able to find statistics to support the burglary theory in Alaska. Number 2257 REPRESENTATIVE MURKOWSKI said there was no objection to Amendment 2. CHAIRMAN KOTT replied that there was an objection. REPRESENTATIVE MURKOWSKI remarked that she appreciates where the department is coming from with HB 294 as well as the department's request to recognize the code of burglary as a gateway crime. However, she expressed the need to ensure that the legislature has all possible information to prosecute those crimes, and therefore she wishes that the committee had a little more [information] than the generalities presented today. She announced that she has not yet decided about Amendment 2. Number 2307 REPRESENTATIVE ROKEBERG related his belief that Amendment 2 is a good amendment, which he is supporting. He referred to the rest of HB 294 as a "Clockwork Orange" bill or "Big Brother" stepping up. REPRESENTATIVE KERTTULA agreed that Amendment 2 is difficult and she feels like she would like to do everything possible to solve crimes, especially sexual offenses. However, the cases she has had involving burglary do not [support the notion that] burglary [led a violent crime]. Therefore, she does not think there is a very high standard of evidence to get the committee to pass HB 294. A roll call vote was taken. Representatives Croft, Kerttula, Rokeberg, and James voted for the amendment. Representatives Murkowski, Green and Kott voted against it. Therefore, Amendment 2 passed by a vote of 4-3. Number 2402 REPRESENTATIVE KERTTULA made a motion to move HB 294 as amended out of committee with individual recommendations and the accompanying fiscal note. She pointed out that the title change will be necessary. CHAIRMAN KOTT agreed that a title change will be necessary and he noted that he will make a request for that. He asked if there was any objection to the motion. REPRESENTATIVE GREEN objected. He said that HB 294 had been gutted and the committee does not have anything before it. He asked why should the books be cluttered up with nothing? REPRESENTATIVE CROFT noted that there was a substantial amount of testimony stating that it is important to authorize correctional officers the ability to take DNA samples rather than just medical doctors. He acknowledged that Representative Green is correct in that the committee is not expanding HB 294 to other crimes yet but is only considering crimes against the person. He explained that DOC did want to have the ability to authorize more people to take DNA samples so that DOC did not have to have doctors do it all the time. Although HB 294 does not make a major step into a whole new policy area or expanding a policy area on burglaries, it does achieve something technical which DOC says it needs. Therefore, he mentioned that he will vote to move the bill. REPRESENTATIVE ROKEBERG indicated that he thinks HB 294 is a great bill and will save costs. CHAIRMAN KOTT remarked that he does not know how much effort is required to swab somebody's mouth but there are Q-tips to buy. He called for a brief at ease at 2:22 p.m. and called the meeting back to order at 2:23 p.m. TAPE 00-61, SIDE B A roll call vote was taken. Representatives Croft, Kerttula, Rokeberg, James, Murkowski and Kott voted in favor of moving the bill. Representative Green voted against it. Therefore, HB 294 as amended, CSHB 294(JUD), moved from the House Judiciary Standing Committee by a vote of 6-1.
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