SB 95-COLLECTION OF DNA/USE OF FORCE  9:00:48 AM SENATOR CON BUNDE introduced SB 95. Current law allows people who are incarcerated to refuse to provide a deoxyribonucleic acid (DNA) sample. He offered a committee substitute (CS). MS. LAUREN WICKERSHAM, staff to Senator Bunde, advised the CS was in front of committee members. SENATOR GENE THERRIAULT made a motion to use version \F as the working document. With no opposition, the motion carried. SENATOR BUNDE referenced Section 2, subsection (p) and advised it addressed immunity for a person using reasonable force to collect DNA. 9:03:14 AM SENATOR GUESS asked Senator Bunde why the language was changed from reasonable force to "for actions arising out of DNA collection." SENATOR BUNDE replied it was due to advice from Dean Guaneli and the Department Of Law (DOL). He deferred Senator Guess's question to the DOL. SENATOR GUESS asked Senator Bunde to expand on the reference to misdemeanors in the fiscal notes. SENATOR BUNDE answered crimes against a person can also fall within the misdemeanor statute of assault. SENATOR THERRIAULT said the new subsection (p) does not contain the word reasonable but it appears in subsection (o) so the verbiage appears more succinct. CHAIR SEEKINS commented as long as they use reasonable force they are indemnified. 9:06:25 AM SENATOR BUNDE offered "reasonable force" is well established in the law. MS. ANNE CARPENETI, criminal division, Department Of Law (DOL), testified that Section 2 includes municipal prosecutions for crimes against a person, and addresses problems with people who refuse to provide a DNA sample. DNA samples could solve crimes. The procedure is a Q-tip swab inside the mouth, which doesn't take much force. DOL experts in civil liability suggested the language change. SB 95 addresses people who have already been convicted. 9:10:16 AM SENATOR THERRIAULT asked Ms. Carpeneti if the rewording in Section 2 was merely a structural change. MS. CARPENETI answered instead of saying a person has immunity; Section 2 says a person cannot bring a cause of action for reasonable actions taken to obtain a DNA sample. SENATOR THERRIAULT asked how it was different. MS. CARPENETI answered the purpose is to stop a frivolous lawsuit in the early stages, but DOL didn't want to immunize anyone who was using unreasonable force. 9:12:15 AM SENATOR THERRIAULT asked Ms. Carpeneti if she views the new suggested language as more broad. MS. CARPENETI answered yes in the sense of civil liability. The purpose of Section 2 is due to tort liability. SENATOR THERRIAULT asked if the criminal part was separated. MS. CARPENETI answered yes. Section 2 is less broad in the criminal sense but more broad in the civil sense. SENATOR THERRIAULT commented he wants to understand why Ms. Carpeneti views the language as broader. MS. CARPENETI said that it attaches at a different period of litigation. Protection kicks in earlier. SENATOR THERRIAULT asked if that was the only change, or whether Section 2 gives broader protection under civil liability. He commented that it seems like it is all attached to "reasonable" so the standard is the same. MS. CARPENETI answered yes. 9:14:00 AM SENATOR FRENCH said most people would cooperate if advised it's a class C felony to refuse to give a DNA sample. CHAIR SEEKINS said the swab would be taken during booking. MS. CARPENETI advised most DNA swabs would be taken at conviction, not during booking. SENATOR FRENCH asked whether maximum-security inmates often refuse to cooperate. MS. CARPENETI answered yes. SENATOR FRENCH commented a claim could be filed in the case of an injury. The judge will have to decide. MS. CARPENETI replied as currently drafted, yes. SENATOR FRENCH clarified a claim wouldn't be automatically rejected due to SB 95, but that a hearing would be held with a motion to dismiss. Then either a judge or jury would decide. He asked Ms. Carpeneti if that is how she sees the process. MS. CARPENETI agreed. SENATOR FRENCH commented that corrections officers work in stressful situations and may not always get along well with life-long inmates. A Q-tip swab could be used to hurt someone. 9:16:41 AM SENATOR FRENCH referred to subsection (o) and the use of reasonable force compared with non-deadly force. He asked Ms. Carpeneti to explain the difference between the terms. MS. CARPENETI explained people are comfortable with the language of reasonable force. The concept of reasonable force is in the constitution and throughout Alaska state law. Non-deadly force has a broad connotation. SENATOR FRENCH asked if non-deadly force allows more force than reasonable force. MS. CARPENETI said that is the way she interprets it. The person receiving the swab sets the parameters. It depends on the circumstances but the purpose is to use as little force as necessary. MS. PORTIA PARKER, Department of Corrections (DOC), explained reasonable force. Force elevates through the response of a person. The DOC has to apply different levels of force every day depending on the situation. Officers are trained to use the least amount of force possible to accomplish the lawful end. The definition is ambiguous. It is the amount of lawful force that is used to reach a lawful end. The DOC doesn't anticipate having to use force to take a DNA sample. 9:21:06 AM CHAIR SEEKINS asked Ms. Parker how hard it is to get a DNA sample. MS. PARKER replied that it generally takes a few officers to hold the prisoner and one to take the swab. CHAIR SEEKINS commented unless severe injury occurred, the person could not bring a nuisance lawsuit. MS. PARKER agreed. SENATOR THERRIAULT commented reasonable force is considered on a sliding scale. MS. PARKER said the least amount of force is used but it depends on the response of the offender. 9:22:25 AM CHAIR SEEKINS asked Ms. Parker whether the DOC uses force in its daily activities. MS. PARKER answered yes. SENATOR THERRIAULT asked Ms. Parker to describe the swab. MS. PARKER replied the Department of Public Safety (DPS) provides DNA kits. It is a small oral swab rubbed along the cheek. It then goes into a special container, which is sent to the crime lab. 9:23:48 AM SENATOR HUGGINS commented the correctional system is a controlled environment. He recognized that it was part of a normal daily process for the DOC to maintain control, which, if SB 95 passes, will be another part of the job. MS. PARKER agreed. The DOC recently went to Arizona to help collect 45 DNA samples and experienced no refusals. MICHAEL MACLEOD, executive director, Alaska Civil Liberties Union (ACLU) opposed SB 95. The ACLU opposes most all systems where the government is collecting identifiable information on individual citizens. He is concerned with privacy rights, recognizing that offenders forego many of their rights. He disputed an earlier reference to fingerprinting saying that DNA collection is invasive. He questioned any direct link with the collection of DNA to resolving crimes. He questioned probable cause to suspect a link to other crimes. He has concerns about due process and the need to use an independent decision maker to resolve whether or not a DNA sample should be taken from an individual. 9:28:35 AM MR. MACLEOD asked whether the information could constitutionally be used in any future proceedings if forcibly taken without probable cause. SENATOR THERRIAULT asked Mr. Macleod whether that ground wasn't already covered by the use of fingerprinting for identification purposes. MR. MACLEOD agreed there are two identification systems with distinctions between the methods. The invasiveness of swabbing is greater than taking fingerprints. 9:30:28 AM CHAIR SEEKINS asked Ms. Carpeneti whether the question of what offenses would apply is already set into law. MS. CARPENETI replied yes. SB 95 refers only to those people convicted of crimes. CHAIR SEEKINS asked whether SB 95 changes current law regarding who is tasked with taking the DNA sample. MS. CARPENETI said no. The judge, at the time of conviction, orders the person to give a DNA sample. It is not a decision made by a correctional officer, it is pursuant to a court order. 9:31:37 AM SENATOR HUGGINS asked Mr. Macleod whether he has any court cases pending on this issue. MR. MACLEOD answered no. SENATOR BUNDE commented the DNA database has generated 30 hits and has aided in 38 different investigations. That makes Alaska one of the most successful per capita in the nation. MS. CARPENETI commented the connection to DNA and solving crimes is significant. 9:33:29 AM CHAIR SEEKINS asked Ms. Carpeneti whether taking a swab from someone's mouth is considered to be extremely invasive. MS. CARPENETI replied no. Blood draws are considered more invasive. CHAIR SEEKINS asked Ms. Parker whether the DOC performs any other normal procedures that are considered more invasive than taking a DNA sample. MS. PARKER answered yes. The DOC does not view taking a DNA sample to be invasive. The booking procedure and medical examinations are more invasive. Taking a DNA sample is a forensic collection of evidence. 9:35:10 AM CHAIR SEEKINS asked which booking procedures are invasive. MS. PARKER replied inmates are required to submit their clothing and possessions. They are given a full medical and sometimes mental health exam. They are watched very closely initially. CHAIR SEEKINS asked Ms. Parker if she was aware of any other jurisdictions that have ruled DNA sampling to be unconstitutional. MS. PARKER answered no. SENATOR HUGGINS commented DNA testing could be used to accuse or to clear someone of a crime. He observed the accuracy of DNA testing favors the innocent person. MS. PARKER agreed. MS. CARPENETI commented she does not consider a Q-tip swab to be invasive. 9:37:28 AM CHAIR SEEKINS asked Ms. Carpeneti if she knew of any jurisdiction that has found DNA sampling to be in violation of fundamental rights. MS. CARPENETTI answered no. MR. TONY NEWMAN, program officer, Division of Juvenile Justice testified probation officers have never had to use force while collecting DNA in the juvenile system. SENATOR GUESS asked Senator Bunde why SB 95 has no effective date. 9:39:59 AM SENATOR BUNDE answered inmates generally serve a long-term incarceration. He didn't see a need for an immediate law. CHAIR SEEKINS asked Senator Bunde if he wanted to add an amendment for an effective date. SENATOR BUNDE said he was not sure it was necessary, but he recognized it could speed up an investigation. SENATOR GUESS made a motion to amend SB 95 to include an immediate effective date. Hearing no objections, the motion carried. 9:43:01 AM SENATOR THERRIAULT moved CSSB 95(JUD) from committee with individual recommendations and accompanying fiscal notes. With no objection, the motion carried. 9:43:25 AM