SB 32-CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE  4:32:50 PM CHAIR SHOWER reconvened the meeting and announced the consideration of SENATE BILL NO. 32 "An Act relating to criminal law and procedure; relating to controlled substances; relating to probation; relating to sentencing; relating to reports of involuntary commitment; amending Rule 6, Alaska Rules of Criminal Procedure; and providing for an effective date." CHAIR SHOWER noted that the committee last heard the bill April 9 and that James Stinson, Director of Public Advocacy, Robert Henderson from the Department of Law, and several people from the Department of Public Safety were available to answer questions. 4:33:53 PM SENATOR KAWASAKI said part of the bill deals with DNA swabs at the time of arrest. He asked for the thoughts behind that. 4:34:23 PM KATHY MONFREDA, Director, Statewide Services, Department of Public Safety (DPS), Anchorage, Alaska, said the law requiring the collection of DNA at the time of arrest was passed in 2007. It was a lobbying effort by Karen Foster, the mother of Bonnie Craig. She was passionate about it. Senator Wielechowski introduced the amendment to a bill. The power behind it was that had the law been in effect the murder could have been solved 12 years earlier. SENATOR KAWASAKI noted that this is a person's first time to be arrested for any sort of crime. Now the penalty for not providing DNA at the time of arrest will be a class A misdemeanor. He asked if there had been a penalty before. MS. MONFREDA replied it currently is not a crime to refuse to submit a DNA sample at the time of arrest. It is only a crime for refusal on felony arrests. SENATOR KAWASAKI asked what happens to the DNA taken at the time of arrest, where it is stored, if it is analyzed at the time of arrest, and what happens to it if the person isn't arraigned. MS. MONFREDA said current law is that if the person is not found guilty, the person can request a court order to have the sample destroyed. The samples are analyzed and entered into a system called CODIS run by the FBI. It is in an encrypted, private network. Once the person gets a court order, the crime lab gets a copy and then destroys the sample, documents the destruction, and notifies the court and the defendant's attorney that the sample has been destroyed. 4:38:02 PM SENATOR KAWASAKI asked if people arrested for disorderly conduct would need to submit to a buccal swab that would be uploaded to CODIS automatically. MICHAEL DUXBURY, Deputy Commissioner, Department of Public Safety (DPS), Anchorage, Alaska, said no. That would be a misdemeanor which does not require a buccal sample to be taken. The requirement applies to serious felonies. SENATOR KAWASAKI asked if it had to be a crime against a person. MR. DUXBURY deferred to the Department of Law. 4:39:16 PM ROBERT HENDERSON, Deputy Attorney General, Criminal Division, Department of Law, Anchorage, Alaska, said disorderly conduct would not be a qualifying offense under AS 44.41.035(b). This is applicable to AS 11.41 crimes against a person offenses, Title 11 felonies, and Title 28 DUI felonies. CHAIR SHOWER asked what proof there is that the data has been truly destroyed and can never be retrieved or used again. MS. MONFREDA said her understanding is that the data is destroyed. It is removed from CODIS and is not accessible. CHAIR SHOWER said that is a good answer for the record. The reality is that it is probably out there somewhere. 4:41:35 PM SENATOR REINBOLD said she likes that there are bookends regarding collecting the DNA sample. She asked for clarification about the point at which a DNA sample is required. MR. HENDERSON replied that the types of offenses and circumstances under which a DNA sample is required is spelled out in AS 44.41.035(b). First it is a person convicted of crimes against a person or a felony under AS l1, AS 28.35, or a law with elements similar to crimes against a person or a felony; (2) would be a minor adjudicated of a delinquent if the minor was 16 years of age or older and committed a crime against a person or a felony; (3) is a voluntary donor; (4) is an anonymous DNA donor used for forensic validation; (5) is a person required to register as a sex offender or child kidnapper; and (6) is what SB 32 talks about - a person arrested for a crime against a person under Title 11.41, a felony under Title 11 or a felony under AS 28.35. SENATOR REINBOLD asked if someone convicted of vehicle theft, burglary, or purse snatching would have to give a DNA sample under current law. MR. HENDERSON said it depends on the type of offense. Someone convicted of felony-level theft would be required to give a DNA sample upon conviction whereas a purse snatching depends on the ultimate charge and conviction. A theft against a person under theft in the second degree is a C felony and would be covered. SENATOR REINBOLD said you keeps saying "at conviction." She generally supports the concept of getting more DNA samples to help reduce wrongful convictions, help get to a verdict more quickly, and help reduce pretrial delays, as long as there are parameters. She asked what the parameters are for SB 32. 4:45:48 PM MR. HENDERSON said the three big categories for which DNA will be collected are any felony arrest or crime against a person or felony DUI. It is a powerful and effective law enforcement tool as Ms. Monfreda described in her initial testimony. There are several safeguards or sideboards on the information that is collected. He has talked about a couple of them. Another safeguard is that federal law imposes a $250,000 fine or up to a year in jail for any unauthorized disclosure of information in CODIS. SENATOR REINBOLD asked if there is any correlation with fingerprints and DNA. She asked if they are allowed to collect fingerprints or would that be part of a warrant. She asked if a swab is taken under SB 32 and someone is not convicted, can a person use the court rule to get the fingerprints and DNA sample destroyed. MR. HENDERSON answered that if a person is not convicted or charges are not filed, that person can have the DNA destroyed and not put into CODIS. If the person is ultimately acquitted, the same process would apply. He asked her to restate the question about fingerprinting. SENATOR REINBOLD asked if fingerprints can be taken at arrest and is there is correlation between fingerprints and DNA. MR. HENDERSON said the constitution allows the police to take certain routine administrative steps during processing or booking. That includes getting biographical information such as name and date of birth, photographing, and fingerprinting and for one of the qualifying offenses, taking the buccal swab. CHAIR SHOWER said he'd like to hear about the safeguards from the Department of Public Safety in an e-mail that spells them out clearly so that the committee and then Judiciary will know exactly what those bookends are. He also asked if any other states have had this kind of provision and if there have been any constitutional issues or legal challenges. He asked for that information to be provided in written format. CHAIR SHOWER asked Mr. Steiner to comment from the public defender side about the proposals in SB 32 regarding DNA collection, use, and destruction. 4:50:33 PM QUINLAN STEINER, Public Defender, Public Defender Agency, Alaska Department of Administration, Anchorage, Alaska, said the issue is that the crime occurs at arrest. The bill could elevate the situation significantly because it covers all 11.41 crimes, which includes misdemeanor assaults in the lowest level of crimes against a person. He did not know how that would relate to the dismissal of charges. Someone could be convicted of a crime of failing to provide. Charges may not even be filed against the original, low-level fear assault that could be stemming from just an argument. A disorderly conduct may not apply, but arguments can develop into fear assaults because of a raised fist in a bar. It often doesn't go anywhere, but that could result in the conviction of somebody for failing to supply the sample. Then that person has to affirmatively seek its destruction. That doesn't happen automatically. It is a whole other process that the person may not be in a position to pursue. This elevates things to a level that the committee may not want. CHAIR SHOWER asked Mr. Henderson to comment or counter Mr. Steiner's view. He asked if the evidence would be admissible if a sample was taken after arrest and that person was not convicted but the DNA provided a hit on another crime. The committee is concerned about using data appropriately, making sure it is protected constitutionally, and not violating rights, he said. MR. HENDERSON said an argument can lead to a misdemeanor assault in the fourth degree, but it has to be more than an argument. It has to have recklessly placed someone in fear of physical injury. There has to be an affirmative step, which is how it is distinguished from disorderly conduct, which is not an 11.40 crime. MR. HENDERSON said that if DNA is taken in good faith by law enforcement and results in that person becoming a suspect in another crime, the DNA match is unlikely to be suppressed. The statute talks about that scenario. MR. HENDERSON said the person has to affirmatively refuse to provide, so it does create a new crime, but in his professional judgement, it would encourage people to submit their DNA. The person is required by law to submit their DNA and being reminded of that will encourage the person to comply with the pre- existing state of the law. Right now the incentive is missing. CHAIR SHOWER expressed concern that it could be part of the lowest level of crime. He wondered how big a hammer they wanted to wield, depending on the level of the crime. He is trying to find a balance. He addressed Ms. Monfreda to make sure that somebody would get back to him with the information he asked for. He said the committee also may not have gotten an answer to Senator Reinbold's question about what happens if someone is arrested versus convicted. MR. STEINER pointed out that a person is entitled to talk to a lawyer before refusing to submit to a breathalyzer sample for a DUI. If this passes, it would certainly raise that prospect. That can be a substantial time process. Someone has the right to engage a lawyer right there on the spot before refusing. That DUI scenario may extend to this process as well. CHAIR SHOWER said that is in line with his question about whether other states have enacted something similar and if there have been constitutional or legal challenges. 4:56:57 PM MR. HENDERSON said that Alaska is not unique. All 50 states use CODIS, the Combined DNA Index System maintained by the FBI. As of 2018, 31 states have DNA collection laws at the time of arrest. Most states define what is a qualifying offense differently. There have been legal challenges. The ones he read this morning about legal challenges for misdemeanor arrests as a qualifying offense have not been successful. The U.S. Supreme Court has definitively held that it is not a violation of the Fourth Amendment to collect someone's DNA upon arrest if they are charged with a serious offense. The question becomes what is the definition of "serious offense." That is what the lower courts are struggling with now. Other states have upheld misdemeanor violent offenses as qualifying offenses. CHAIR SHOWER asked Ms. Monfreda if she had gotten his request about providing written information about the bookends or guardrails in SB 32 regarding privacy protections related to providing DNA. MS. MONFREDA said she would coordinate with the lab DNA experts to provide the safeguard steps in writing. SENATOR KAWASAKI asked for someone from the Department of Law to contact him to discuss his concerns about the language about terroristic threatening. He had some questions for law enforcement regarding the Title 47 process and the request for the Department of Public Safety to receive all records of a person adjudicated of a mental illness or incompetence issued on or after October 1, 1981. Legislative Legal Services said there might be due process issues for people who committed crimes prior to 2014 under the Brady handgun bill. That says it is illegal to dispose of or sell a firearm or ammunition to any individual adjudicated of a mental defect or who has been committed to a mental institution. CHAIR SHOWER asked Mr. Henderson if he could provide that information to the committee in writing. MR. HENDERSON said yes. CHAIR SHOWER asked Ms. Monfreda to provide the information as well. MS. MONFREDA agreed. CHAIR SHOWER asked Mr. Steiner to share anything he needed to with the committee. MR. STEINER said certainly. 5:01:48 PM SENATOR REINBOLD said this is a powerful tool and the bookends are really important. There are provisions to have the DNA destroyed for wrongful or non-convictions or dropped cases. There is a $250,000 fine for misuse of the information. She asked Mr. Steiner and Mr. Henderson if this could help ensure that wrongful convictions do not take place. She asked for a yes or no answer. MR. HENDERSON replied the short answer is yes. There may be an example in another state that he will look for. MR. STEINER said there may have been instances and it is certainly a theoretical possibility. He doesn't have an answer for a closed case, for example, but it's theoretically possible. SENATOR REINBOLD clarified that she meant that this could be a powerful tool for the defendant to make sure the wrong people are ending up in jail. To her, this is just as good an amendment for wrongful convictions. It could help either side. MR. STEINER replied that would depend on whether a new DNA sample could tie in to closed cases. He doesn't know if those cases stay in the system once they have been closed. SENATOR REINBOLD said she thought he was confusing issues. MR. STEINER said he was not confused about the issue. SENATOR REINBOLD said she was not talking about closed cases at all. MR. STEINER said with a false conviction, the case is closed. The case is closed with conviction. SENATOR REINBOLD said she is talking about preventing wrongful convictions. She asked Ms. Monfreda for information on the offenses in 2018. CHAIR SHOWER said powerful tools are important, and they can be used for good and bad. That is the balance the bill needs to strike. CHAIR SHOWER held SB 32 in committee.