Legislature(2003 - 2004)

05/10/2003 09:05 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ 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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