Legislature(2003 - 2004)
05/10/2003 09:05 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE CS FOR CS FOR HOUSE BILL NO. 49(JUD)
"An Act relating to the deoxyribonucleic acid (DNA)
identification registration system and testing; and providing
for an effective date."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-chair Wilken informed that this bill would expand the State's
deoxyribonucleic acid (DNA) database "registry to include samples
from all persons who are convicted of a felony or a misdemeanor sex
offense."
REPRESENTATIVE TOM ANDERSON, the bill's sponsor, explained that the
collection of DNA "is the next step in the advancement in the
science of crime investigation," and has been instrumental in
providing evidence in convictions that, otherwise, "would have
previously been impossible." He stated that DNA evidence, in
addition to assisting in convictions, has also aided in clearing
persons wrongfully accused of a crime. He stated that this
legislation would provide law enforcement efficiencies, assist with
furthering unsolved crimes, and expand the State's DNA database.
Furthermore, he noted that DNA samples would be acquired from those
juveniles adjudicated as a delinquent for felony or misdemeanor sex
offenses, would allow for voluntary and anonymous DNA donors, and
would require that sex offenders or child kidnappers register as
such. He stated that DNA sampling is a nationwide trend.
Senator Bunde voiced support for the bill.
SFC 03 # 86, Side B 09:52 AM
Senator Bunde understood that parents might voluntarily desire to
have their children's DNA sampled in order to provide
identification verification; however, he asked the value of
anonymous DNA donations.
ANNE CARPENETI, Assistant Attorney General, Legal Services Section-
Juneau, Criminal Division, Department of Law responded that
anonymous DNA donations could be valuable in identifying missing
person remains.
Senator Taylor asked for further clarification regarding "the
scope" of individuals who would be affected by this DNA sampling
legislation.
Ms. Carpeneti stated that individuals "convicted of felonies under
Title 11 and Title 28, Chapter 35 felonies which is felony drunk
driving, felony refusal and felony leaving the scene of an
accident" would be subject to the legislation. Additionally, she
noted it would affect persons convicted of crimes against persons
under AS 1141 that would include "a few misdemeanor sex offenses
and assaults."
Senator Taylor asked how the legislation would affect juveniles.
Ms. Carpeneti responded that it would affect "juveniles adjudicated
as delinquents" who are convicted for these offenses.
Senator Taylor asked the legislation's fiscal impact.
Co-chair Wilken stated that an indeterminate Department of Law
fiscal note accompanies the bill.
Senator Taylor asked whether federal funding might be forthcoming.
Ms. Carpeneti voiced the understanding that federal funding would
be available to provide for the additional testing expenses.
JUANITA HENSLEY, Special Assistant, Office of the Commissioner,
Department of Public Safety, noted that this federal funding is
unique in that the federal government would establish direct
contracts with certified laboratories to which the State would send
the samples for testing. She noted that this indirect funding is
anticipated to be available for a minimum of five years.
Senator Hoffman asked what provisions are included in the bill to
guarantee that the DNA samples would not be used for other purposes
such as health information or cloning. Additionally, he asked
regarding the State's liability regarding the protection of this
information.
Representative Anderson responded that Section 11.56.762 located on
page 2, lines 20 - 26 of the bill addresses this concern.
Sec. 11.56.762. Unlawful use of DNA samples. (a) A person
commits the crime of unlawful use of DNA samples if the person
knowingly, without authorization under AS 44.41.035, possesses
or allows another person access to (1) a blood, oral, or
tissue sample collected for inclusion in the deozyribonucleic
identification registration system under AS 44.41.035, or (2)
identification data or records derived from those samples.
(b) Unlawful use of DNA samples is a class C felony.
Ms. Carpeneti qualified that the DNA testing would be limited to 13
specific criteria and would not include medical DNA testing which
determines health history. She stressed that, while the State crime
laboratory would retain the DNA sample in a secured facility, the
legislation prohibits a wider range of testing from being
conducted.
Senator Hoffman clarified that the testing would be limited to 13
elements.
Ms. Carpeneti stated that the 13 DNA molecule-sampling tests would
provide sufficient information to the Department of Public Safety.
She continued that the sample would be securely retained in case
the DNA results require double-checking.
Senator Olson asked how this legislation provides protection
against DNA being used for commercial purposes.
Representative Anderson stated that protection is provided in
language on page 3, line 23 through page 4, line 1 that reads as
follows.
Sec. 7. AS 44.41.035(f) is amended to read:
(f) The DNA identification registration system is
confidential, is not a public record under AS 40.25.110
40.25.140, and may be used only for
(1) providing DNA or other blood grouping tests for
identification analysis;
(2) [LAW ENFORCEMENT PURPOSES INCLUDING] criminal
investigations; [AND] prosecutions, and identification of
human remains;
(3) statistical blind analysis; [OR]
(4) improving the operation of the system; or
(5) exoneration of the innocent.
New text underlined [DELETED TEXT BRACKETED]
Representative Anderson asserted "that parameters" pertaining to
sampling use are provided in the legislation.
CHRIS BEHEIM, Director, Scientific Crime Detection Laboratory and
Manager, DNA Database, Department of Public Safety testified via
teleconference from an offnet site to share that in the previous 16
months, the State's DNA database entertained 30 searches resulting
in 15 instances where the DNA database "actually connected crime
scene evidence to convicted offenders." He stated that the
remaining 15 "hits linked together unsolved crimes" whereby law
enforcement officials have been notified that "the same perpetrator
committed these seemingly unrelated offenses." He shared successes
that other states have experienced by the expansion of their DNA
programs.
Mr. Beheim communicated that while the current program is "very,
very successful," an expanded program would be beneficial as it
would provide identification information for children; incur cost
savings by reducing the time involved in crime scene
investigations; update evidence information on older, unsolved
crimes; and exonerate some individuals considered suspects in a
crime. He continued that this legislation would align the State
with other states' programs by allowing DNA samples to be
retroactively acquired from individuals who are in jail or under
probation or parole. He noted that current policy limits the
collection of DNA sampling to those convicted since the bill was
initially enacted in 1996.
Mr. Beheim informed that the state of Virginia, which has the
largest criminal "DNA database in the country," has determined that
were their DNA database limited to only violent offenders, a high
percentage of crimes would not have been solved as "there is a very
strong correlation between individuals who might not have been
convicted of violent crimes but are still involved in criminal
activity." Therefore, he anticipated that the State of Alaska would
experience a similar increase in its ability to match perpetrators
to crime scenes. He continued that this program would allow the
State's DNA database to be uploaded into the National DNA Index
System (NDIS) to allow unsolved crime profiles to be
reciprocatively matched against other states' convicted offender
databases.
Mr. Beheim assured that the testing of the "DNA markers" would be
limited to law enforcement identification purposes, and he
furthered that, rather than being identified by name, DNA samples
are identified by a laboratory coding system that is known only to
that particular crime laboratory.
Senator Bunde asked Mr. Beheim to comment on whether the coding
system would provide adequate security measures against computer
hackers who might seek access to the information to sell, for
instance, to an insurance company.
Mr. Beheim assured that the coding system would prevent a sample
from being traced to an individual. Additionally, he emphasized
that medical testing information would be unavailable, as those
types of tests would not be conducted.
LINDA WILSON, Deputy Director, Public Defender Agency, Department
of Administration testified via teleconference from an offnet site
to express that the adoption of this legislation would
"significantly expand" the offenses" upon which DNA sampling is
conducted. She expressed that the 80 offenses that would be added
to the qualifying list would range from misdemeanor convictions for
indecent exposure and assaultive behavior to felony convictions for
such non-violent crimes as shoplifting and refusal to submit to a
Breathalyzer test and failure to stop at the direction of a police
officer. In addition, she stated that the retroactive language in
the bill is going "to widen" the number of individuals who would be
required to give a sample.
Ms Wilson anticipated that the department would experience an
increase in its caseload due to being appointed to represent those
individuals refusing to adhere to the DNA requirements. She
continued that this expected increase in caseloads is the reason
that the department has submitted an indeterminate fiscal note. She
criticized that the bill does not include a mechanism to re-
evaluate a crime wherein a convicted person maintains their
innocence. She asserted that a mechanism to retest old evidence,
which was processed using less sophisticated methods than are
available today, should be included in the bill.
Senator Olson asked whether the Department of Administration
supported the legislation.
Ms. Wilson announced that the department was not in favor of the
legislation.
Senator Bunde asked for further information regarding testimony
citing that individuals who commit "petty crimes or relatively
minor felony offenses" commit more serious offenses.
Ms. Hensley shared that when the state of Virginia expanded its DNA
sampling database to include individuals who were convicted of a
"white collar crime" such as forgery, the inclusion of these "non-
violent crime" offenders in the DNA data base enabled the State to
solve 63-percent of its property crimes, 21-percent of sex offense
crimes, 14-percent of homicide crimes, and one-percent of murder
crimes. She asserted that this is evidence that individuals, who
commit non-violent crimes such as shoplifting, do commit other
crimes including violent crimes.
Senator Stevens asked how this legislation would expand the State's
DNA qualifying offenses as specified in the "State DNA Database
Laws Qualifying Offenses (As of October 2002)" chart in the October
15, 2002 National Conference of State Legislatures (NCSL)
LegisBrief [copy on file]. He voiced the understanding that it
would provide for the inclusion of all felony offenses.
Ms. Carpeneti agreed that all felony offenses listed in the State's
Title 11 and Title 28.35 would qualify, including Felony Driving
While Intoxicated (DWI) and refusal to submit to an alcohol
Breathalyzer test, as well as "juveniles found to be delinquent
based on similar acts." Additionally, she stated, "it would include
some misdemeanors that are crimes against a person;" as well as
arrestees or suspects "if there's a search warrant to gather DNA
from the suspect;" however, she clarified that their DNA would not
be included in the databank were they cleared of the offense.
Continuing, she stated that the DNA sampling expansion would
include individuals currently on probation or parole were the
crimes they committed offenses that are being added.
Senator Stevens assumed, therefore, that other states listed on the
chart might "have limited versions" of offenses as well.
Ms. Carpeneti concurred.
Ms. Carpeneti clarified that the bill would not include individuals
on unsupervised probation or parole.
Senator B. Stevens assumed that the four states that are using DNA
sampling to its "fullest advantage" require DNA samples from
arrestees and suspects.
Ms. Carpeneti noted that Louisiana does require suspects and
arrestees to give DNA samples. However, she noted that it does not
require all violent crime offenders to provide DNA samples.
Senator B. Stevens surmised that because Louisiana requires DNA
samples from arrestees and suspects, there is no need to require it
from the violent crime offenders as they might have previously been
sampled.
Ms. Carpeneti replied that in some states, including Alaska, a DNA
sample taken from an arrestee or suspect who is not convicted or
whose conviction is overruled, would be purged from the databank.
Senator Stevens stated that because all crime scene evidence is
retained indefinitely, a convicted offender's DNA could be matched
against the entire field. Therefore, he asserted that all the
various offense qualifications could be eliminated, were the bill
simplified to require "all jailed offenders" to be tested.
Ms. Hensley puzzled as to the reason that all violent crime
offenders are not tested in some states.
Senator B Stevens asserted that DNA testing of all offenders was
originally the intent of presenting this legislation.
Representative Anderson could not verify that assertion.
Senator B. Stevens stated that he would not be offering an
amendment to this affect because it would experience much
opposition. However, he pointed out that were all offenders to
provide DNA samples, they would either be exonerated of a crime and
their DNA sample would be destroyed or they would be convicted and
would be a jailed offender.
Representative Anderson agreed; however, he voiced that there would
not be support for such a blanket approach.
Senator Stevens asserted that an all-inclusive approach would solve
more crimes.
Senator Taylor voiced concern regarding the security of the DNA
databanks and urged that safeguards be instituted to warrant a high
level of confidence.
Ms. Carpeneti responded that the Department of Law has confidence
that adequate safeguards would be in place. She noted that the
inclusion of language specifying that anyone found guilty of misuse
of the sample and the data would be charged with a Class C felony
would be a deterrent.
Senator Olson voiced concern that a DNA match might reflect "a
false positive" and therefore convict an innocent person.
Mr. Beheim responded that DNA profiles are essentially unique and
that it would be virtually impossible, with the exception of
identical twins, for two individuals to have the same DNA profile.
He alerted that a sample mix-up could occur, however, he qualified
that samples are retained and are re-analysised for "positive
assurance" whenever a positive "hit" is found.
Senator Olson asked how often a mix-up in the collection of the
data and a DNA sample might occur.
Mr. Beheim responded that no mix-ups were found in the re-analysis
conducted on the 15 positive hits that have been experienced. He
continued that in addition to the re-testing of the crime scene
evidence, a new DNA sample from the suspect is also acquired and
tested previous to any criminal proceedings being undertaken.
Senator Olson asked what is done with DNA samples of an unsolved
crime.
Mr. Beheim responded that all crime scene evidence is permanently
retained in the laboratory. He stated that all unsolved crime DNA
profiles, which are referred to as a forensic index, are entered
into a national database and "are searched against other unsolved
cases" on a State and national level.
AT EASE 10:26 AM / 10:26 AM
Senator Taylor moved to report the bill from Committee with
individual recommendations and accompanying fiscal notes.
Without objection, SCS HB 49(JUD) was REPORTED from Committee with
previous zero fiscal note # 1 from the Department of Public Safety,
previous zero fiscal note #2 from Department of Law; and previous
indeterminate fiscal note #3 from the Department of Administration.
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