SB 95-COLLECTION OF DNA/USE OF FORCE  SENATOR GENE THERRIAULT announced SB 95 to be up for consideration. He asked Senator Bunde to introduce the bill. 4:38:24 PM SENATOR CON BUNDE, prime sponsor, explained that he had the bill drafted as a result of a conversation with the commissioner of the Department of Public Safety. He learned that people who are required to submit to DNA testing may refuse to cooperate and the authorities may not force compliance. Convicted people often have quite a resume of another crimes, he said, so matching DNA can help solve other unsolved crimes. It's logical, he said, that the state should be able to use reasonable force to collect a DNA sample if the convicted individual decides not to cooperate. The procedure isn't invasive it's simply using a cotton swab on the cheek. SB 95 is an attempt to clear the backlog of unsolved crimes and perhaps discourage some people from committing additional crimes. CHAIR THERRIAULT asked Senator Bunde to discuss some of the backup material provided in the packets. SENATOR BUNDE referenced the letter from the Anchorage Police Department supporting SB 95 then said the other material is general background and information on the effectiveness of using DNA. CHAIR THERRIAULT remarked the language "forced collection" sounds harsher than a cotton swab on the cheek. He asked which other states have implemented DNA collection laws. LAUREN WICKERSHAM, staff to Senator Bunde, said she didn't know which states use reasonable force to collect DNA but the database technology is new and growing quickly. CHAIR THERRIAULT said his staff found that the State of Washington uses similar legislation and he was curious whether the sponsor worked with the drafters to develop model legislation. 4:43:54 PM SENATOR BUNDE emphasized this is a relatively new concern and some in law enforcement were surprised that a convicted individual could refuse to cooperate. The crime lab and the Department of Public Safety did provide input, he said. CHAIR THERRIAULT asked whether this would apply only to people who were incarcerated and not be retroactive. SENATOR BUNDE replied he didn't intend it to be retroactive. MS. WICKERSHAM added the bill doesn't address whom; it addresses how to collect for those who refuse. SENATOR CHARLIE HUGGINS suggested the sponsor narrow the scope of who may collect a DNA sample. SENATOR BUNDE replied the bill was purposefully drafted to cast a broad net. SENATOR KIN ELTON questioned whether the state might incur liability or obligation once they have collected the DNA sample. Once the DNA is collected does it go into a databank that is secure and inviolate, he asked. SENATOR BUNDE replied his understanding is that DNA is only collected for identification purposes and testing for extensive genetic markers wouldn't occur. He assured members the information is kept secure. SENATOR ELTON asked what happens to samples collected from juvenile offenders. SENATOR BUNDE replied his staff confirmed that privacy would be maintained. 4:49:48 PM SENATOR ELTON said he assumed that most felonies were prosecuted by the state and he wondered which municipalities prosecute felonies. SENATOR BUNDE replied none come to mind, but it is in keeping with the casts a wide net theory. CHAIR THERRIAULT asked Mr. Giffer to give his testimony. MR. GIFFER, Alaska State Trooper investigator, spoke via teleconference to say that this bill would be important in working old cases. Taking a swab is very non-intrusive and no one should get hurt in the process. CHAIR THERRIAULT asked Dean Guaneli to give testimony. 4:54:33 PM DEAN GUANELI, chief assistant attorney general, Department of Law, expressed support for the bill for the reasons stated by Senator Bunde and Investigator Gifford. DNA testing has proven to be most effective in solving crimes, convicting the guilty, and clearing the innocent. SB 95 makes it clear that samples may be collected from municipal offenders who are convicted of assault. The clarification is good because research shows that collecting DNA samples from misdemeanor offenders solves a number of serious offenses. He emphasized that collecting DNA samples by means of swabbing the inside of the cheek isn't an intrusive procedure and that whether force is used or not is entirely within the person's control. Most people choose to cooperate, but some people who are under state supervision elect to buck the system at every opportunity. He suggested that most of those who refuse to cooperate would change their mind if they were informed that the law authorizes force. Technology is advancing quickly and smaller samples are needed to conduct DNA testing. In fact, the oil in a fingerprint is getting to be enough to run a DNA test, he said. However, because prisoner litigation is and will continue to be an issue, he suggested that an appropriate immunity clause against prisoner lawsuits is needed. SENATOR KIM ELTON said he assumes that municipalities often prosecute misdemeanor assault crimes. MR. GUANELI said that is correct. SENATOR ELTON asked where the cutoff point might occur and questioned whether a DNA sample might be collected if neighbors got into a scuffle. 5:01:00 PM MR. GUANELI replied current law requires DNA samples to be collected from anyone convicted of a crime against a person. Misdemeanor assault typically occurs in domestic situations, but it could happen in the situation posited and that would be a crime against a person. SENATOR ELTON asked for confirmation that the intent is not to go to lower level crimes. MR. GUANELI said that is not the intent; the intent is for more inclusion. Under current law misdemeanor assaults prosecuted by a municipality aren't covered so one of the things SB 95 does is include those and make the system totally comprehensive. CHAIR THERRIAULT summarized that the expansion is the same type of crime prosecuted by another jurisdiction. MR. GUANELI agreed. CHAIR THERRIAULT asked what happens to DNA data that is collected from minors once they become adults. MR. GUANELI replied juvenile fingerprint information is retained in juvenile justice systems and he thought DNA identification was retained as well. They are simply identification tools; the DNA markers checked in an identification system are referred to as "junk DNA" in the scientific community and provide no useful information other than identification. Many parts of the DNA system disclose nothing other than identity and that's what's saved and analyzed, he said. SENATOR ELTON made the point that there's nothing in law that precludes the state from analyzing the DNA for markers that would relate to medical or other genetic conditions. MR. GUANELI replied misuse of DNA information became a crime under previous legislation, but he'd have to review the statutes to determine whether the state is authorized to run tests for information other than identification. CHAIR THERRIAULT asked whether it was Senator Olson's bill that touched on penalties for improper use and/or distribution of DNA information. SENATOR ELTON recalled insurance companies and other interests were at issue. SENATOR BUNDE pointed out that SB 95 doesn't expand the tests for DNA it simply addresses collection. 5:05:51 PM CHAIR THERRIAULT read the following from the State of Idaho and asked whether Alaska has a similar requirement. When the state accepts an offender from another state under any interstate compact, or any other reciprocal agreement with any county, state or federal agency, or any other provision of law whether or not the offender is confined or released the acceptance is conditional on the offender providing a DNA sample and thumbprint impression if the offender was convicted of an offense that would qualify as a crime described in Section 19. MR. GUANELI explained that registered sex offenders are required to give a DNA sample whether they're convicted in Alaska or elsewhere, but non sex offenders who come in under the interstate process aren't required to do so. There are two ways to address that, he said. Although he'd have to check with the interstate supervision process, his first suggestion is for the Department of Corrections to adopt an administrative policy stating they won't accept a prisoner under interstate supervision without taking a DNA sample. Another way to address the issue would be to enact a statute to require collection. The latter would require drafting changes, but it is a possibility. CHAIR THERRIAULT asked Portia Parker to come forward. 5:08:15 PM PORTIA PARKER, deputy commissioner, Department of Corrections, thanked Senator Bunde for introducing the legislation and expressed departmental support for the bill. Generally corrections officials don't have difficulty collecting DNA samples from offenders, but just knowing that reasonable force could be used would be very helpful. The Department of Corrections also supports the bill as a way to close other cases using DNA. This is a real need for law enforcement and for victims and for public safety, she said. The collection process and the policies and procedures the Department of Corrections and the Department of Public Safety established cooperatively when DNA samples were first collected is working fairly well, she reported, but "this would be a definite to the department in fulfilling that statutory obligation." CHAIR THERRIAULT asked her to address the interstate compact issue. MS. PARKER said she hadn't contacted the compact administrator, but she thought the department would support that if it didn't interfere with the interstate compact rules with other states. "Although if other states are requiring that of offenders going into their state, we probably won't have a problem requiring that." It certainly wouldn't be a problem if the requirement were in statute, she said 5:10:56 PM CHAIR THERRIAULT questioned why the state would swap prisoners and asked her to elaborate on what actually happens under the compact. MS. PARKER explained that this involves a probationer or parolee in another state who wants to move to Alaska and typically it's an Alaskan who wants to return home. Likewise, Alaska has offenders from outside the state who want to return home once they are out of prison and on probation or parole. A mechanism is established whereby every state participating in the compact must abide by compact rules. Although there are exceptions, "They pretty much have to take ours who want to go there and we have to take theirs who want to come here so there is that movement." Generally it's a good process, she said, because they're going where they have family support, or a job, or a school opportunity. CHAIR THERRIAULT asked Senator Bunde whether he would object to including language to make it clear that if a convicted offender were to come to Alaska from another jurisdiction, they would have to abide by the same rules as people convicted in Alaska. SENATOR BUNDE said he wouldn't object; it seems logical. SENATOR THOMAS WAGONER questioned how many people move in and out of the state under the compact. 5:12:42 PM MS. PARKER replied she could get the information, but last year roughly the same number left the state under the compact as returned home. SENATOR WAGONER asked if his assumption is correct that the receiving parole officer is responsible for oversight. MS. PARKER replied that's the case since the compact adopted new rules in August 2004. Probation or parole violations here are subject to Alaska conditions and consequences. The same applies to offenders sent out of state; they must comply with the conditions in the jurisdiction in which they reside. CHAIR THERRIAULT referenced page 1, lines 6 and 7 and questioned whether we currently collect blood samples or just rely on the oral swab. MS.PARKER replied the oral swab is used. CHAIR THERRIAULT referenced the suggested language "may use reasonable force to collect" and questioned whether it should be expanded to say, "use such means as are reasonably necessary to collect". MS. PARKER responded the department had no opinion on that. SCOTT CAULDER testified via teleconference and expressed concern with the applicability of the bill because it appears to address an overly broad range of things. Another issue is that although the bill targets notorious criminals, anybody else might be eligible. He questioned what might be considered reasonable when "reasonable force" may be used. This would be particularly important when you're talking about juveniles, he said. What this boils down to is "The individual has the choice, but their choice is no choice and this is our way to get those people who are bucking the system." He asked the committee to consider whether that foundation is a good reason for a law even though it might be a good tool in the toolbox. 5:20:30 PM CHAIR THERRIAULT asked Mr. Guaneli what standard the court would allow in determining what is reasonable and if unreasonable force were used, whether the sample would be invalid. MR. GUANELI said his view is that if unreasonable force were used both the state and the officer would be subject to liability, but the sample wouldn't be jeopardized. In terms of what is reasonable, it's the same as with any negligence action. The standard would be what a reasonable officer would do under the circumstances and an expert would validate the action if litigation were involved. "It's difficult to envision all the circumstances that would face an officer who is dealing with a recalcitrant inmate so the word reasonable was chosen. The whole concept of reasonableness is reflected throughout the Alaska statutes - throughout our constitution." SENATOR ELTON pointed out that inserting the language "in this state" in two places is a limiting element and that language seems to apply to felonies under AS 11 or AS 28.35. Then the language, "or a law or an ordinance" is used. Because the word "or" is used, he wondered whether "in this state" applies to the state statutes but not to an ordinance or law elsewhere. MR. GUANELI said the qualifier "in this state" would mean Alaska, Alaska statutes, or Alaska municipal statutes. If there were going to be a provision that talks about interstate probation supervision, you'd have to add a number 6 to the classes of people from whom samples would be taken, he said. The bill was drafted that way so it would include municipal offences. Standard language used throughout the statutes is "a law or ordinance with elements similar to a crime". That raises the question of whether people coming to Alaska who have already served their time would have to submit a sample. Using the language, "in this state" would exclude those people from the reach of this statute, he said. SENATOR ELTON asked if his reading is that using "or" doesn't interrupt the predicate "in this state". MR. GUANELI said it doesn't interrupt. CHAIR THERRIAULT announced they would work with the sponsor and look at the interstate compact issue before hearing the bill again. 5:25:32 PM SENATOR BUNDE summarized that people who are investigated for minor crimes frequently have a substantial criminal record so he would argue for including the broader definition of crimes against people and that collecting a DNA sample is the 21st century fingerprint. SB 95 was held in committee.