| 1 | | - | Senate Bill No. 1228 CHAPTER 994 An act to amend Section 680 of, and to add Section 679.12 to, the Penal Code, relating to criminal procedure. [ Approved by Governor September 30, 2022. Filed with Secretary of State September 30, 2022. ] LEGISLATIVE COUNSEL'S DIGESTSB 1228, Wiener. Criminal procedure: DNA samples.Existing law requires any adult person who is arrested or charged with any felony offense to provide buccal swab samples, right thumbprints, a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. Existing law requires that a DNA specimen and sample be destroyed and that a searchable database profile be expunged from that databank program if the person from whom the specimen or sample was collected has no past or present offense or pending charge that qualifies that person for inclusion in the database and if that person submits an application, as specified, and gives the court discretion to grant or deny the application.This bill would create procedures for reference samples of DNA from a victim to a crime or alleged crime, and to reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion, as defined. The bill would require those procedures to include, among other things, requiring that law enforcement agencies use these samples only for purposes directly related to the incident being investigated, prohibiting law enforcement agencies from comparing these samples with samples that do not relate to the incident being investigated, and prohibiting law enforcement agencies from including these samples in databases that allow the samples to be compared to or matched with profiles derived from DNA evidence obtained from crime scenes. The bill would specify that these provisions do not prevent crime laboratories from collecting, retaining, and using specified DNA profiles for comparison purposes in multiple cases. By imposing additional duties on local law enforcement agencies, this bill would impose a state-mandated local program.This bill would incorporate additional changes to Section 680 of the Penal Code proposed by SB 916 to be operative only if this bill and SB 916 are enacted and this bill is enacted last.The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES Bill TextThe people of the State of California do enact as follows:SECTION 1. Section 679.12 is added to the Penal Code, to read:679.12. (a) The following procedures apply to known reference samples of DNA from a victim of a crime or alleged crime, and to known reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion, as well as to any profiles developed from those samples:(1) Law enforcement agencies and their agents shall use these DNA samples or profiles only for purposes directly related to the incident being investigated.(2) No law enforcement agency or agent thereof may compare any of these samples or profiles with DNA samples or profiles that do not relate to the incident being investigated.(3) No law enforcement agency or agent thereof may include any of these DNA profiles in any database that allows these samples to be compared to or matched with profiles derived from DNA evidence obtained from crime scenes.(4) No law enforcement agency or agent thereof may provide any other person or entity with access to any of these DNA samples or profiles, unless that person or entity agrees to abide by the statutory restrictions on the use and disclosure of that sample or profile.(5) Any part of a DNA sample that remains after the requested testing or analysis has been performed shall be securely stored and may only be used in accordance with the restrictions on use and disclosure of the sample provided in this section.(6) No agent of a law enforcement agency may provide any part of these DNA samples or profiles to any person or entity other than the law enforcement agency that provided them, except portions of these remaining DNA samples may be provided to the defendant when authorized by court order.(7) A person whose DNA profile has been voluntarily provided for purposes of exclusion shall have their searchable database profile expunged from all public and private databases if the person has no past or present offense or pending charge which qualifies that person for inclusion within the states DNA and Forensic Identification Database and Databank Program.(8) This section does not prohibit crime laboratories from collecting, retaining, and using for comparison purposes in multiple cases the following DNA profiles:(i) The DNA profiles from persons whose proximity or access to DNA case evidence during the collection, handling, or processing of that evidence might result in DNA contamination, including first responders, crime scene investigators, laboratory staff, or others at the laboratory, if these kinds of elimination samples are voluntarily provided with written consent for their use as quality assurance or control samples, or if the elimination samples are obtained as a condition of employment with written consent, so that the crime laboratory can assure reliable results.(ii) The DNA profiles from persons associated with the manufacturing or production of consumable supplies or reagents or positive control samples used in laboratory testing, if these kinds of elimination samples are voluntarily provided with written consent.(iii) The DNA profiles that may be incidentally encountered on consumable supplies or reagents such as plastic tubes, plastic plates, swabs, and buffers.(9) The requirement for written consent for voluntary elimination samples does not preclude a DNA testing laboratory from retaining, for use consistent with this section, the voluntary quality assurance or control samples described in paragraph (8) that were provided without written consent by persons prior to the enactment of this section, or if the laboratory is otherwise required to retain such case samples by another provision of law.(10) This section does not preclude a DNA testing laboratory from conducting a limited comparison of samples that were analyzed concurrently in order to evaluate the DNA typing results for potential contamination, determine the source of contamination when detected, and to ensure that the contaminating profiles were not misidentified as DNA profiles from putative perpetrators.(11) This section does not affect the inclusion of samples in state DNA databases as described in Section 295 of the Penal Code, the use of state DNA databases for identifying missing persons, the compliance with other provisions of law that allow the release of samples for postconviction testing, or the use of reference samples from a suspect lawfully collected in a manner that does not violate this section.(b) For the purposes of this section, the following definitions apply:(1) The incident being investigated means the crime or alleged crime that caused a law enforcement agency or agent to analyze or request a DNA sample from a victim of or witness to that crime or alleged crime.(2) An agent of a law enforcement agency includes any person or entity that the agency provides with access to a DNA sample collected directly from the person of a victim of or witness to a crime or alleged crime, or to any profile developed from those samples. This includes, but is not limited to, public or private DNA testing facilities.(3) A victim or witness does not include any person who is a target of the investigation of the incident being investigated, if law enforcement agents have probable cause to believe that person has committed a public offense relating to the incident under investigation.(4) A sample is voluntarily provided for the purpose of exclusion if law enforcement agents do not consider the individual to be a suspect and have requested a voluntary DNA sample in order to exclude that persons DNA profile from consideration in the current investigation.(c) This section does not apply to evidence arising from the victim that is biological material that is not the victims own and is not from an individual who voluntarily provided a reference sample for exclusion, such as DNA transferred from an assailant.SEC. 2. Section 680 of the Penal Code is amended to read:680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights.(b) The Legislature finds and declares all of the following:(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.(3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases.(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.(5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.(7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12.(c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur:(1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:(A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.(B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.(2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:(A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.(B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.(3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.(4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.(5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.(6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.(d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee.(2) Subject to the commitment of sufficient resources to respond to requests for information, sexual assault victims have the following rights:(A) The right to be informed whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case.(B) The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank of case evidence.(C) The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.(3) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies.(e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency.(f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention.(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday.(g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.(h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section.(i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.(j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.(k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f).SEC. 2.5. Section 680 of the Penal Code is amended to read:680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights.(b) The Legislature finds and declares all of the following:(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.(3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases.(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.(5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.(7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12.(c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur:(1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:(A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.(B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.(2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:(A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.(B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.(3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.(4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.(5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.(6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.(d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee.(2) Sexual assault victims have the right to access the Department of Justices SAFE-T database portal consistent with subdivision (e) of Section 680.3 for information involving their own forensic kit and the status of the kit.(3) Sexual assault victims have the right to be informed of the following:(A) Whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case.(B) Whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank or the federal Department of Justice or Federal Bureau of Investigation CODIS database of case evidence.(C) Whether or not there is a confirmed match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.(4) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies.(e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency.(f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention.(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday.(g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.(h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section.(i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.(j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.(k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f).SEC. 3. Section 2.5 of this bill incorporates amendments to Section 680 of the Penal Code proposed by both this bill and Senate Bill 916. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2023, (2) each bill amends Section 680 of the Penal Code, and (3) this bill is enacted after Senate Bill 916, in which case Section 2 of this bill shall not become operative.SEC. 4. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. |
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| 1 | + | Enrolled September 02, 2022 Passed IN Senate August 30, 2022 Passed IN Assembly August 24, 2022 Amended IN Assembly August 18, 2022 Amended IN Assembly August 15, 2022 Amended IN Senate April 18, 2022 Amended IN Senate March 08, 2022 CALIFORNIA LEGISLATURE 20212022 REGULAR SESSION Senate Bill No. 1228Introduced by Senator Wiener(Principal coauthor: Assembly Member Ting)(Coauthor: Assembly Member Jones-Sawyer)February 17, 2022 An act to amend Section 680 of, and to add Section 679.12 to, the Penal Code, relating to criminal procedure.LEGISLATIVE COUNSEL'S DIGESTSB 1228, Wiener. Criminal procedure: DNA samples.Existing law requires any adult person who is arrested or charged with any felony offense to provide buccal swab samples, right thumbprints, a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. Existing law requires that a DNA specimen and sample be destroyed and that a searchable database profile be expunged from that databank program if the person from whom the specimen or sample was collected has no past or present offense or pending charge that qualifies that person for inclusion in the database and if that person submits an application, as specified, and gives the court discretion to grant or deny the application.This bill would create procedures for reference samples of DNA from a victim to a crime or alleged crime, and to reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion, as defined. The bill would require those procedures to include, among other things, requiring that law enforcement agencies use these samples only for purposes directly related to the incident being investigated, prohibiting law enforcement agencies from comparing these samples with samples that do not relate to the incident being investigated, and prohibiting law enforcement agencies from including these samples in databases that allow the samples to be compared to or matched with profiles derived from DNA evidence obtained from crime scenes. The bill would specify that these provisions do not prevent crime laboratories from collecting, retaining, and using specified DNA profiles for comparison purposes in multiple cases. By imposing additional duties on local law enforcement agencies, this bill would impose a state-mandated local program.This bill would incorporate additional changes to Section 680 of the Penal Code proposed by SB 916 to be operative only if this bill and SB 916 are enacted and this bill is enacted last.The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES Bill TextThe people of the State of California do enact as follows:SECTION 1. Section 679.12 is added to the Penal Code, to read:679.12. (a) The following procedures apply to known reference samples of DNA from a victim of a crime or alleged crime, and to known reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion, as well as to any profiles developed from those samples:(1) Law enforcement agencies and their agents shall use these DNA samples or profiles only for purposes directly related to the incident being investigated.(2) No law enforcement agency or agent thereof may compare any of these samples or profiles with DNA samples or profiles that do not relate to the incident being investigated.(3) No law enforcement agency or agent thereof may include any of these DNA profiles in any database that allows these samples to be compared to or matched with profiles derived from DNA evidence obtained from crime scenes.(4) No law enforcement agency or agent thereof may provide any other person or entity with access to any of these DNA samples or profiles, unless that person or entity agrees to abide by the statutory restrictions on the use and disclosure of that sample or profile.(5) Any part of a DNA sample that remains after the requested testing or analysis has been performed shall be securely stored and may only be used in accordance with the restrictions on use and disclosure of the sample provided in this section.(6) No agent of a law enforcement agency may provide any part of these DNA samples or profiles to any person or entity other than the law enforcement agency that provided them, except portions of these remaining DNA samples may be provided to the defendant when authorized by court order.(7) A person whose DNA profile has been voluntarily provided for purposes of exclusion shall have their searchable database profile expunged from all public and private databases if the person has no past or present offense or pending charge which qualifies that person for inclusion within the states DNA and Forensic Identification Database and Databank Program.(8) This section does not prohibit crime laboratories from collecting, retaining, and using for comparison purposes in multiple cases the following DNA profiles:(i) The DNA profiles from persons whose proximity or access to DNA case evidence during the collection, handling, or processing of that evidence might result in DNA contamination, including first responders, crime scene investigators, laboratory staff, or others at the laboratory, if these kinds of elimination samples are voluntarily provided with written consent for their use as quality assurance or control samples, or if the elimination samples are obtained as a condition of employment with written consent, so that the crime laboratory can assure reliable results.(ii) The DNA profiles from persons associated with the manufacturing or production of consumable supplies or reagents or positive control samples used in laboratory testing, if these kinds of elimination samples are voluntarily provided with written consent.(iii) The DNA profiles that may be incidentally encountered on consumable supplies or reagents such as plastic tubes, plastic plates, swabs, and buffers.(9) The requirement for written consent for voluntary elimination samples does not preclude a DNA testing laboratory from retaining, for use consistent with this section, the voluntary quality assurance or control samples described in paragraph (8) that were provided without written consent by persons prior to the enactment of this section, or if the laboratory is otherwise required to retain such case samples by another provision of law.(10) This section does not preclude a DNA testing laboratory from conducting a limited comparison of samples that were analyzed concurrently in order to evaluate the DNA typing results for potential contamination, determine the source of contamination when detected, and to ensure that the contaminating profiles were not misidentified as DNA profiles from putative perpetrators.(11) This section does not affect the inclusion of samples in state DNA databases as described in Section 295 of the Penal Code, the use of state DNA databases for identifying missing persons, the compliance with other provisions of law that allow the release of samples for postconviction testing, or the use of reference samples from a suspect lawfully collected in a manner that does not violate this section.(b) For the purposes of this section, the following definitions apply:(1) The incident being investigated means the crime or alleged crime that caused a law enforcement agency or agent to analyze or request a DNA sample from a victim of or witness to that crime or alleged crime.(2) An agent of a law enforcement agency includes any person or entity that the agency provides with access to a DNA sample collected directly from the person of a victim of or witness to a crime or alleged crime, or to any profile developed from those samples. This includes, but is not limited to, public or private DNA testing facilities.(3) A victim or witness does not include any person who is a target of the investigation of the incident being investigated, if law enforcement agents have probable cause to believe that person has committed a public offense relating to the incident under investigation.(4) A sample is voluntarily provided for the purpose of exclusion if law enforcement agents do not consider the individual to be a suspect and have requested a voluntary DNA sample in order to exclude that persons DNA profile from consideration in the current investigation.(c) This section does not apply to evidence arising from the victim that is biological material that is not the victims own and is not from an individual who voluntarily provided a reference sample for exclusion, such as DNA transferred from an assailant.SEC. 2. Section 680 of the Penal Code is amended to read:680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights.(b) The Legislature finds and declares all of the following:(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.(3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases.(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.(5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.(7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12.(c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur:(1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:(A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.(B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.(2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:(A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.(B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.(3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.(4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.(5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.(6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.(d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee.(2) Subject to the commitment of sufficient resources to respond to requests for information, sexual assault victims have the following rights:(A) The right to be informed whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case.(B) The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank of case evidence.(C) The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.(3) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies.(e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency.(f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention.(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday.(g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.(h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section.(i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.(j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.(k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f).SEC. 2.5. Section 680 of the Penal Code is amended to read:680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights.(b) The Legislature finds and declares all of the following:(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.(3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases.(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.(5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.(7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12.(c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur:(1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:(A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.(B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.(2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:(A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.(B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.(3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.(4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.(5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.(6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.(d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee.(2) Sexual assault victims have the right to access the Department of Justices SAFE-T database portal consistent with subdivision (e) of Section 680.3 for information involving their own forensic kit and the status of the kit.(3) Sexual assault victims have the right to be informed of the following:(A) Whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case.(B) Whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank or the federal Department of Justice or Federal Bureau of Investigation CODIS database of case evidence.(C) Whether or not there is a confirmed match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.(4) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies.(e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency.(f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention.(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday.(g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.(h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section.(i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.(j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.(k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f).SEC. 3. Section 2.5 of this bill incorporates amendments to Section 680 of the Penal Code proposed by both this bill and Senate Bill 916. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2023, (2) each bill amends Section 680 of the Penal Code, and (3) this bill is enacted after Senate Bill 916, in which case Section 2 of this bill shall not become operative.SEC. 4. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. |
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| 14 | 27 | | |
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| 15 | 28 | | LEGISLATIVE COUNSEL'S DIGEST |
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| 16 | 29 | | |
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| 17 | 30 | | ## LEGISLATIVE COUNSEL'S DIGEST |
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| 18 | 31 | | |
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| 19 | 32 | | SB 1228, Wiener. Criminal procedure: DNA samples. |
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| 20 | 33 | | |
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| 21 | 34 | | Existing law requires any adult person who is arrested or charged with any felony offense to provide buccal swab samples, right thumbprints, a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. Existing law requires that a DNA specimen and sample be destroyed and that a searchable database profile be expunged from that databank program if the person from whom the specimen or sample was collected has no past or present offense or pending charge that qualifies that person for inclusion in the database and if that person submits an application, as specified, and gives the court discretion to grant or deny the application.This bill would create procedures for reference samples of DNA from a victim to a crime or alleged crime, and to reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion, as defined. The bill would require those procedures to include, among other things, requiring that law enforcement agencies use these samples only for purposes directly related to the incident being investigated, prohibiting law enforcement agencies from comparing these samples with samples that do not relate to the incident being investigated, and prohibiting law enforcement agencies from including these samples in databases that allow the samples to be compared to or matched with profiles derived from DNA evidence obtained from crime scenes. The bill would specify that these provisions do not prevent crime laboratories from collecting, retaining, and using specified DNA profiles for comparison purposes in multiple cases. By imposing additional duties on local law enforcement agencies, this bill would impose a state-mandated local program.This bill would incorporate additional changes to Section 680 of the Penal Code proposed by SB 916 to be operative only if this bill and SB 916 are enacted and this bill is enacted last.The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above. |
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| 22 | 35 | | |
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| 23 | 36 | | Existing law requires any adult person who is arrested or charged with any felony offense to provide buccal swab samples, right thumbprints, a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. Existing law requires that a DNA specimen and sample be destroyed and that a searchable database profile be expunged from that databank program if the person from whom the specimen or sample was collected has no past or present offense or pending charge that qualifies that person for inclusion in the database and if that person submits an application, as specified, and gives the court discretion to grant or deny the application. |
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| 24 | 37 | | |
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| 25 | 38 | | This bill would create procedures for reference samples of DNA from a victim to a crime or alleged crime, and to reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion, as defined. The bill would require those procedures to include, among other things, requiring that law enforcement agencies use these samples only for purposes directly related to the incident being investigated, prohibiting law enforcement agencies from comparing these samples with samples that do not relate to the incident being investigated, and prohibiting law enforcement agencies from including these samples in databases that allow the samples to be compared to or matched with profiles derived from DNA evidence obtained from crime scenes. The bill would specify that these provisions do not prevent crime laboratories from collecting, retaining, and using specified DNA profiles for comparison purposes in multiple cases. By imposing additional duties on local law enforcement agencies, this bill would impose a state-mandated local program. |
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| 26 | 39 | | |
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| 27 | 40 | | This bill would incorporate additional changes to Section 680 of the Penal Code proposed by SB 916 to be operative only if this bill and SB 916 are enacted and this bill is enacted last. |
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| 28 | 41 | | |
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| 29 | 42 | | The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. |
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| 30 | 43 | | |
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| 31 | 44 | | This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above. |
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| 32 | 45 | | |
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| 33 | 46 | | ## Digest Key |
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| 34 | 47 | | |
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| 35 | 48 | | ## Bill Text |
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| 36 | 49 | | |
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| 37 | 50 | | The people of the State of California do enact as follows:SECTION 1. Section 679.12 is added to the Penal Code, to read:679.12. (a) The following procedures apply to known reference samples of DNA from a victim of a crime or alleged crime, and to known reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion, as well as to any profiles developed from those samples:(1) Law enforcement agencies and their agents shall use these DNA samples or profiles only for purposes directly related to the incident being investigated.(2) No law enforcement agency or agent thereof may compare any of these samples or profiles with DNA samples or profiles that do not relate to the incident being investigated.(3) No law enforcement agency or agent thereof may include any of these DNA profiles in any database that allows these samples to be compared to or matched with profiles derived from DNA evidence obtained from crime scenes.(4) No law enforcement agency or agent thereof may provide any other person or entity with access to any of these DNA samples or profiles, unless that person or entity agrees to abide by the statutory restrictions on the use and disclosure of that sample or profile.(5) Any part of a DNA sample that remains after the requested testing or analysis has been performed shall be securely stored and may only be used in accordance with the restrictions on use and disclosure of the sample provided in this section.(6) No agent of a law enforcement agency may provide any part of these DNA samples or profiles to any person or entity other than the law enforcement agency that provided them, except portions of these remaining DNA samples may be provided to the defendant when authorized by court order.(7) A person whose DNA profile has been voluntarily provided for purposes of exclusion shall have their searchable database profile expunged from all public and private databases if the person has no past or present offense or pending charge which qualifies that person for inclusion within the states DNA and Forensic Identification Database and Databank Program.(8) This section does not prohibit crime laboratories from collecting, retaining, and using for comparison purposes in multiple cases the following DNA profiles:(i) The DNA profiles from persons whose proximity or access to DNA case evidence during the collection, handling, or processing of that evidence might result in DNA contamination, including first responders, crime scene investigators, laboratory staff, or others at the laboratory, if these kinds of elimination samples are voluntarily provided with written consent for their use as quality assurance or control samples, or if the elimination samples are obtained as a condition of employment with written consent, so that the crime laboratory can assure reliable results.(ii) The DNA profiles from persons associated with the manufacturing or production of consumable supplies or reagents or positive control samples used in laboratory testing, if these kinds of elimination samples are voluntarily provided with written consent.(iii) The DNA profiles that may be incidentally encountered on consumable supplies or reagents such as plastic tubes, plastic plates, swabs, and buffers.(9) The requirement for written consent for voluntary elimination samples does not preclude a DNA testing laboratory from retaining, for use consistent with this section, the voluntary quality assurance or control samples described in paragraph (8) that were provided without written consent by persons prior to the enactment of this section, or if the laboratory is otherwise required to retain such case samples by another provision of law.(10) This section does not preclude a DNA testing laboratory from conducting a limited comparison of samples that were analyzed concurrently in order to evaluate the DNA typing results for potential contamination, determine the source of contamination when detected, and to ensure that the contaminating profiles were not misidentified as DNA profiles from putative perpetrators.(11) This section does not affect the inclusion of samples in state DNA databases as described in Section 295 of the Penal Code, the use of state DNA databases for identifying missing persons, the compliance with other provisions of law that allow the release of samples for postconviction testing, or the use of reference samples from a suspect lawfully collected in a manner that does not violate this section.(b) For the purposes of this section, the following definitions apply:(1) The incident being investigated means the crime or alleged crime that caused a law enforcement agency or agent to analyze or request a DNA sample from a victim of or witness to that crime or alleged crime.(2) An agent of a law enforcement agency includes any person or entity that the agency provides with access to a DNA sample collected directly from the person of a victim of or witness to a crime or alleged crime, or to any profile developed from those samples. This includes, but is not limited to, public or private DNA testing facilities.(3) A victim or witness does not include any person who is a target of the investigation of the incident being investigated, if law enforcement agents have probable cause to believe that person has committed a public offense relating to the incident under investigation.(4) A sample is voluntarily provided for the purpose of exclusion if law enforcement agents do not consider the individual to be a suspect and have requested a voluntary DNA sample in order to exclude that persons DNA profile from consideration in the current investigation.(c) This section does not apply to evidence arising from the victim that is biological material that is not the victims own and is not from an individual who voluntarily provided a reference sample for exclusion, such as DNA transferred from an assailant.SEC. 2. Section 680 of the Penal Code is amended to read:680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights.(b) The Legislature finds and declares all of the following:(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.(3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases.(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.(5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.(7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12.(c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur:(1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:(A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.(B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.(2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:(A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.(B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.(3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.(4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.(5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.(6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.(d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee.(2) Subject to the commitment of sufficient resources to respond to requests for information, sexual assault victims have the following rights:(A) The right to be informed whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case.(B) The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank of case evidence.(C) The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.(3) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies.(e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency.(f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention.(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday.(g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.(h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section.(i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.(j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.(k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f).SEC. 2.5. Section 680 of the Penal Code is amended to read:680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights.(b) The Legislature finds and declares all of the following:(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.(3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases.(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.(5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.(7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12.(c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur:(1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:(A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.(B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.(2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:(A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.(B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.(3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.(4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.(5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.(6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.(d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee.(2) Sexual assault victims have the right to access the Department of Justices SAFE-T database portal consistent with subdivision (e) of Section 680.3 for information involving their own forensic kit and the status of the kit.(3) Sexual assault victims have the right to be informed of the following:(A) Whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case.(B) Whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank or the federal Department of Justice or Federal Bureau of Investigation CODIS database of case evidence.(C) Whether or not there is a confirmed match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.(4) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies.(e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency.(f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention.(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday.(g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.(h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section.(i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.(j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.(k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f).SEC. 3. Section 2.5 of this bill incorporates amendments to Section 680 of the Penal Code proposed by both this bill and Senate Bill 916. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2023, (2) each bill amends Section 680 of the Penal Code, and (3) this bill is enacted after Senate Bill 916, in which case Section 2 of this bill shall not become operative.SEC. 4. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. |
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| 38 | 51 | | |
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| 39 | 52 | | The people of the State of California do enact as follows: |
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| 40 | 53 | | |
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| 41 | 54 | | ## The people of the State of California do enact as follows: |
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| 42 | 55 | | |
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| 43 | 56 | | SECTION 1. Section 679.12 is added to the Penal Code, to read:679.12. (a) The following procedures apply to known reference samples of DNA from a victim of a crime or alleged crime, and to known reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion, as well as to any profiles developed from those samples:(1) Law enforcement agencies and their agents shall use these DNA samples or profiles only for purposes directly related to the incident being investigated.(2) No law enforcement agency or agent thereof may compare any of these samples or profiles with DNA samples or profiles that do not relate to the incident being investigated.(3) No law enforcement agency or agent thereof may include any of these DNA profiles in any database that allows these samples to be compared to or matched with profiles derived from DNA evidence obtained from crime scenes.(4) No law enforcement agency or agent thereof may provide any other person or entity with access to any of these DNA samples or profiles, unless that person or entity agrees to abide by the statutory restrictions on the use and disclosure of that sample or profile.(5) Any part of a DNA sample that remains after the requested testing or analysis has been performed shall be securely stored and may only be used in accordance with the restrictions on use and disclosure of the sample provided in this section.(6) No agent of a law enforcement agency may provide any part of these DNA samples or profiles to any person or entity other than the law enforcement agency that provided them, except portions of these remaining DNA samples may be provided to the defendant when authorized by court order.(7) A person whose DNA profile has been voluntarily provided for purposes of exclusion shall have their searchable database profile expunged from all public and private databases if the person has no past or present offense or pending charge which qualifies that person for inclusion within the states DNA and Forensic Identification Database and Databank Program.(8) This section does not prohibit crime laboratories from collecting, retaining, and using for comparison purposes in multiple cases the following DNA profiles:(i) The DNA profiles from persons whose proximity or access to DNA case evidence during the collection, handling, or processing of that evidence might result in DNA contamination, including first responders, crime scene investigators, laboratory staff, or others at the laboratory, if these kinds of elimination samples are voluntarily provided with written consent for their use as quality assurance or control samples, or if the elimination samples are obtained as a condition of employment with written consent, so that the crime laboratory can assure reliable results.(ii) The DNA profiles from persons associated with the manufacturing or production of consumable supplies or reagents or positive control samples used in laboratory testing, if these kinds of elimination samples are voluntarily provided with written consent.(iii) The DNA profiles that may be incidentally encountered on consumable supplies or reagents such as plastic tubes, plastic plates, swabs, and buffers.(9) The requirement for written consent for voluntary elimination samples does not preclude a DNA testing laboratory from retaining, for use consistent with this section, the voluntary quality assurance or control samples described in paragraph (8) that were provided without written consent by persons prior to the enactment of this section, or if the laboratory is otherwise required to retain such case samples by another provision of law.(10) This section does not preclude a DNA testing laboratory from conducting a limited comparison of samples that were analyzed concurrently in order to evaluate the DNA typing results for potential contamination, determine the source of contamination when detected, and to ensure that the contaminating profiles were not misidentified as DNA profiles from putative perpetrators.(11) This section does not affect the inclusion of samples in state DNA databases as described in Section 295 of the Penal Code, the use of state DNA databases for identifying missing persons, the compliance with other provisions of law that allow the release of samples for postconviction testing, or the use of reference samples from a suspect lawfully collected in a manner that does not violate this section.(b) For the purposes of this section, the following definitions apply:(1) The incident being investigated means the crime or alleged crime that caused a law enforcement agency or agent to analyze or request a DNA sample from a victim of or witness to that crime or alleged crime.(2) An agent of a law enforcement agency includes any person or entity that the agency provides with access to a DNA sample collected directly from the person of a victim of or witness to a crime or alleged crime, or to any profile developed from those samples. This includes, but is not limited to, public or private DNA testing facilities.(3) A victim or witness does not include any person who is a target of the investigation of the incident being investigated, if law enforcement agents have probable cause to believe that person has committed a public offense relating to the incident under investigation.(4) A sample is voluntarily provided for the purpose of exclusion if law enforcement agents do not consider the individual to be a suspect and have requested a voluntary DNA sample in order to exclude that persons DNA profile from consideration in the current investigation.(c) This section does not apply to evidence arising from the victim that is biological material that is not the victims own and is not from an individual who voluntarily provided a reference sample for exclusion, such as DNA transferred from an assailant. |
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| 44 | 57 | | |
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| 45 | 58 | | SECTION 1. Section 679.12 is added to the Penal Code, to read: |
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| 46 | 59 | | |
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| 47 | 60 | | ### SECTION 1. |
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| 48 | 61 | | |
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| 49 | 62 | | 679.12. (a) The following procedures apply to known reference samples of DNA from a victim of a crime or alleged crime, and to known reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion, as well as to any profiles developed from those samples:(1) Law enforcement agencies and their agents shall use these DNA samples or profiles only for purposes directly related to the incident being investigated.(2) No law enforcement agency or agent thereof may compare any of these samples or profiles with DNA samples or profiles that do not relate to the incident being investigated.(3) No law enforcement agency or agent thereof may include any of these DNA profiles in any database that allows these samples to be compared to or matched with profiles derived from DNA evidence obtained from crime scenes.(4) No law enforcement agency or agent thereof may provide any other person or entity with access to any of these DNA samples or profiles, unless that person or entity agrees to abide by the statutory restrictions on the use and disclosure of that sample or profile.(5) Any part of a DNA sample that remains after the requested testing or analysis has been performed shall be securely stored and may only be used in accordance with the restrictions on use and disclosure of the sample provided in this section.(6) No agent of a law enforcement agency may provide any part of these DNA samples or profiles to any person or entity other than the law enforcement agency that provided them, except portions of these remaining DNA samples may be provided to the defendant when authorized by court order.(7) A person whose DNA profile has been voluntarily provided for purposes of exclusion shall have their searchable database profile expunged from all public and private databases if the person has no past or present offense or pending charge which qualifies that person for inclusion within the states DNA and Forensic Identification Database and Databank Program.(8) This section does not prohibit crime laboratories from collecting, retaining, and using for comparison purposes in multiple cases the following DNA profiles:(i) The DNA profiles from persons whose proximity or access to DNA case evidence during the collection, handling, or processing of that evidence might result in DNA contamination, including first responders, crime scene investigators, laboratory staff, or others at the laboratory, if these kinds of elimination samples are voluntarily provided with written consent for their use as quality assurance or control samples, or if the elimination samples are obtained as a condition of employment with written consent, so that the crime laboratory can assure reliable results.(ii) The DNA profiles from persons associated with the manufacturing or production of consumable supplies or reagents or positive control samples used in laboratory testing, if these kinds of elimination samples are voluntarily provided with written consent.(iii) The DNA profiles that may be incidentally encountered on consumable supplies or reagents such as plastic tubes, plastic plates, swabs, and buffers.(9) The requirement for written consent for voluntary elimination samples does not preclude a DNA testing laboratory from retaining, for use consistent with this section, the voluntary quality assurance or control samples described in paragraph (8) that were provided without written consent by persons prior to the enactment of this section, or if the laboratory is otherwise required to retain such case samples by another provision of law.(10) This section does not preclude a DNA testing laboratory from conducting a limited comparison of samples that were analyzed concurrently in order to evaluate the DNA typing results for potential contamination, determine the source of contamination when detected, and to ensure that the contaminating profiles were not misidentified as DNA profiles from putative perpetrators.(11) This section does not affect the inclusion of samples in state DNA databases as described in Section 295 of the Penal Code, the use of state DNA databases for identifying missing persons, the compliance with other provisions of law that allow the release of samples for postconviction testing, or the use of reference samples from a suspect lawfully collected in a manner that does not violate this section.(b) For the purposes of this section, the following definitions apply:(1) The incident being investigated means the crime or alleged crime that caused a law enforcement agency or agent to analyze or request a DNA sample from a victim of or witness to that crime or alleged crime.(2) An agent of a law enforcement agency includes any person or entity that the agency provides with access to a DNA sample collected directly from the person of a victim of or witness to a crime or alleged crime, or to any profile developed from those samples. This includes, but is not limited to, public or private DNA testing facilities.(3) A victim or witness does not include any person who is a target of the investigation of the incident being investigated, if law enforcement agents have probable cause to believe that person has committed a public offense relating to the incident under investigation.(4) A sample is voluntarily provided for the purpose of exclusion if law enforcement agents do not consider the individual to be a suspect and have requested a voluntary DNA sample in order to exclude that persons DNA profile from consideration in the current investigation.(c) This section does not apply to evidence arising from the victim that is biological material that is not the victims own and is not from an individual who voluntarily provided a reference sample for exclusion, such as DNA transferred from an assailant. |
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| 50 | 63 | | |
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| 51 | 64 | | 679.12. (a) The following procedures apply to known reference samples of DNA from a victim of a crime or alleged crime, and to known reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion, as well as to any profiles developed from those samples:(1) Law enforcement agencies and their agents shall use these DNA samples or profiles only for purposes directly related to the incident being investigated.(2) No law enforcement agency or agent thereof may compare any of these samples or profiles with DNA samples or profiles that do not relate to the incident being investigated.(3) No law enforcement agency or agent thereof may include any of these DNA profiles in any database that allows these samples to be compared to or matched with profiles derived from DNA evidence obtained from crime scenes.(4) No law enforcement agency or agent thereof may provide any other person or entity with access to any of these DNA samples or profiles, unless that person or entity agrees to abide by the statutory restrictions on the use and disclosure of that sample or profile.(5) Any part of a DNA sample that remains after the requested testing or analysis has been performed shall be securely stored and may only be used in accordance with the restrictions on use and disclosure of the sample provided in this section.(6) No agent of a law enforcement agency may provide any part of these DNA samples or profiles to any person or entity other than the law enforcement agency that provided them, except portions of these remaining DNA samples may be provided to the defendant when authorized by court order.(7) A person whose DNA profile has been voluntarily provided for purposes of exclusion shall have their searchable database profile expunged from all public and private databases if the person has no past or present offense or pending charge which qualifies that person for inclusion within the states DNA and Forensic Identification Database and Databank Program.(8) This section does not prohibit crime laboratories from collecting, retaining, and using for comparison purposes in multiple cases the following DNA profiles:(i) The DNA profiles from persons whose proximity or access to DNA case evidence during the collection, handling, or processing of that evidence might result in DNA contamination, including first responders, crime scene investigators, laboratory staff, or others at the laboratory, if these kinds of elimination samples are voluntarily provided with written consent for their use as quality assurance or control samples, or if the elimination samples are obtained as a condition of employment with written consent, so that the crime laboratory can assure reliable results.(ii) The DNA profiles from persons associated with the manufacturing or production of consumable supplies or reagents or positive control samples used in laboratory testing, if these kinds of elimination samples are voluntarily provided with written consent.(iii) The DNA profiles that may be incidentally encountered on consumable supplies or reagents such as plastic tubes, plastic plates, swabs, and buffers.(9) The requirement for written consent for voluntary elimination samples does not preclude a DNA testing laboratory from retaining, for use consistent with this section, the voluntary quality assurance or control samples described in paragraph (8) that were provided without written consent by persons prior to the enactment of this section, or if the laboratory is otherwise required to retain such case samples by another provision of law.(10) This section does not preclude a DNA testing laboratory from conducting a limited comparison of samples that were analyzed concurrently in order to evaluate the DNA typing results for potential contamination, determine the source of contamination when detected, and to ensure that the contaminating profiles were not misidentified as DNA profiles from putative perpetrators.(11) This section does not affect the inclusion of samples in state DNA databases as described in Section 295 of the Penal Code, the use of state DNA databases for identifying missing persons, the compliance with other provisions of law that allow the release of samples for postconviction testing, or the use of reference samples from a suspect lawfully collected in a manner that does not violate this section.(b) For the purposes of this section, the following definitions apply:(1) The incident being investigated means the crime or alleged crime that caused a law enforcement agency or agent to analyze or request a DNA sample from a victim of or witness to that crime or alleged crime.(2) An agent of a law enforcement agency includes any person or entity that the agency provides with access to a DNA sample collected directly from the person of a victim of or witness to a crime or alleged crime, or to any profile developed from those samples. This includes, but is not limited to, public or private DNA testing facilities.(3) A victim or witness does not include any person who is a target of the investigation of the incident being investigated, if law enforcement agents have probable cause to believe that person has committed a public offense relating to the incident under investigation.(4) A sample is voluntarily provided for the purpose of exclusion if law enforcement agents do not consider the individual to be a suspect and have requested a voluntary DNA sample in order to exclude that persons DNA profile from consideration in the current investigation.(c) This section does not apply to evidence arising from the victim that is biological material that is not the victims own and is not from an individual who voluntarily provided a reference sample for exclusion, such as DNA transferred from an assailant. |
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| 52 | 65 | | |
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| 53 | 66 | | 679.12. (a) The following procedures apply to known reference samples of DNA from a victim of a crime or alleged crime, and to known reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion, as well as to any profiles developed from those samples:(1) Law enforcement agencies and their agents shall use these DNA samples or profiles only for purposes directly related to the incident being investigated.(2) No law enforcement agency or agent thereof may compare any of these samples or profiles with DNA samples or profiles that do not relate to the incident being investigated.(3) No law enforcement agency or agent thereof may include any of these DNA profiles in any database that allows these samples to be compared to or matched with profiles derived from DNA evidence obtained from crime scenes.(4) No law enforcement agency or agent thereof may provide any other person or entity with access to any of these DNA samples or profiles, unless that person or entity agrees to abide by the statutory restrictions on the use and disclosure of that sample or profile.(5) Any part of a DNA sample that remains after the requested testing or analysis has been performed shall be securely stored and may only be used in accordance with the restrictions on use and disclosure of the sample provided in this section.(6) No agent of a law enforcement agency may provide any part of these DNA samples or profiles to any person or entity other than the law enforcement agency that provided them, except portions of these remaining DNA samples may be provided to the defendant when authorized by court order.(7) A person whose DNA profile has been voluntarily provided for purposes of exclusion shall have their searchable database profile expunged from all public and private databases if the person has no past or present offense or pending charge which qualifies that person for inclusion within the states DNA and Forensic Identification Database and Databank Program.(8) This section does not prohibit crime laboratories from collecting, retaining, and using for comparison purposes in multiple cases the following DNA profiles:(i) The DNA profiles from persons whose proximity or access to DNA case evidence during the collection, handling, or processing of that evidence might result in DNA contamination, including first responders, crime scene investigators, laboratory staff, or others at the laboratory, if these kinds of elimination samples are voluntarily provided with written consent for their use as quality assurance or control samples, or if the elimination samples are obtained as a condition of employment with written consent, so that the crime laboratory can assure reliable results.(ii) The DNA profiles from persons associated with the manufacturing or production of consumable supplies or reagents or positive control samples used in laboratory testing, if these kinds of elimination samples are voluntarily provided with written consent.(iii) The DNA profiles that may be incidentally encountered on consumable supplies or reagents such as plastic tubes, plastic plates, swabs, and buffers.(9) The requirement for written consent for voluntary elimination samples does not preclude a DNA testing laboratory from retaining, for use consistent with this section, the voluntary quality assurance or control samples described in paragraph (8) that were provided without written consent by persons prior to the enactment of this section, or if the laboratory is otherwise required to retain such case samples by another provision of law.(10) This section does not preclude a DNA testing laboratory from conducting a limited comparison of samples that were analyzed concurrently in order to evaluate the DNA typing results for potential contamination, determine the source of contamination when detected, and to ensure that the contaminating profiles were not misidentified as DNA profiles from putative perpetrators.(11) This section does not affect the inclusion of samples in state DNA databases as described in Section 295 of the Penal Code, the use of state DNA databases for identifying missing persons, the compliance with other provisions of law that allow the release of samples for postconviction testing, or the use of reference samples from a suspect lawfully collected in a manner that does not violate this section.(b) For the purposes of this section, the following definitions apply:(1) The incident being investigated means the crime or alleged crime that caused a law enforcement agency or agent to analyze or request a DNA sample from a victim of or witness to that crime or alleged crime.(2) An agent of a law enforcement agency includes any person or entity that the agency provides with access to a DNA sample collected directly from the person of a victim of or witness to a crime or alleged crime, or to any profile developed from those samples. This includes, but is not limited to, public or private DNA testing facilities.(3) A victim or witness does not include any person who is a target of the investigation of the incident being investigated, if law enforcement agents have probable cause to believe that person has committed a public offense relating to the incident under investigation.(4) A sample is voluntarily provided for the purpose of exclusion if law enforcement agents do not consider the individual to be a suspect and have requested a voluntary DNA sample in order to exclude that persons DNA profile from consideration in the current investigation.(c) This section does not apply to evidence arising from the victim that is biological material that is not the victims own and is not from an individual who voluntarily provided a reference sample for exclusion, such as DNA transferred from an assailant. |
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| 54 | 67 | | |
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| 55 | 68 | | |
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| 56 | 69 | | |
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| 57 | 70 | | 679.12. (a) The following procedures apply to known reference samples of DNA from a victim of a crime or alleged crime, and to known reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion, as well as to any profiles developed from those samples: |
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| 58 | 71 | | |
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| 59 | 72 | | (1) Law enforcement agencies and their agents shall use these DNA samples or profiles only for purposes directly related to the incident being investigated. |
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| 60 | 73 | | |
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| 61 | 74 | | (2) No law enforcement agency or agent thereof may compare any of these samples or profiles with DNA samples or profiles that do not relate to the incident being investigated. |
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| 62 | 75 | | |
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| 63 | 76 | | (3) No law enforcement agency or agent thereof may include any of these DNA profiles in any database that allows these samples to be compared to or matched with profiles derived from DNA evidence obtained from crime scenes. |
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| 64 | 77 | | |
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| 65 | 78 | | (4) No law enforcement agency or agent thereof may provide any other person or entity with access to any of these DNA samples or profiles, unless that person or entity agrees to abide by the statutory restrictions on the use and disclosure of that sample or profile. |
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| 66 | 79 | | |
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| 67 | 80 | | (5) Any part of a DNA sample that remains after the requested testing or analysis has been performed shall be securely stored and may only be used in accordance with the restrictions on use and disclosure of the sample provided in this section. |
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| 68 | 81 | | |
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| 69 | 82 | | (6) No agent of a law enforcement agency may provide any part of these DNA samples or profiles to any person or entity other than the law enforcement agency that provided them, except portions of these remaining DNA samples may be provided to the defendant when authorized by court order. |
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| 70 | 83 | | |
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| 71 | 84 | | (7) A person whose DNA profile has been voluntarily provided for purposes of exclusion shall have their searchable database profile expunged from all public and private databases if the person has no past or present offense or pending charge which qualifies that person for inclusion within the states DNA and Forensic Identification Database and Databank Program. |
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| 72 | 85 | | |
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| 73 | 86 | | (8) This section does not prohibit crime laboratories from collecting, retaining, and using for comparison purposes in multiple cases the following DNA profiles: |
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| 74 | 87 | | |
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| 75 | 88 | | (i) The DNA profiles from persons whose proximity or access to DNA case evidence during the collection, handling, or processing of that evidence might result in DNA contamination, including first responders, crime scene investigators, laboratory staff, or others at the laboratory, if these kinds of elimination samples are voluntarily provided with written consent for their use as quality assurance or control samples, or if the elimination samples are obtained as a condition of employment with written consent, so that the crime laboratory can assure reliable results. |
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| 76 | 89 | | |
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| 77 | 90 | | (ii) The DNA profiles from persons associated with the manufacturing or production of consumable supplies or reagents or positive control samples used in laboratory testing, if these kinds of elimination samples are voluntarily provided with written consent. |
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| 78 | 91 | | |
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| 79 | 92 | | (iii) The DNA profiles that may be incidentally encountered on consumable supplies or reagents such as plastic tubes, plastic plates, swabs, and buffers. |
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| 80 | 93 | | |
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| 81 | 94 | | (9) The requirement for written consent for voluntary elimination samples does not preclude a DNA testing laboratory from retaining, for use consistent with this section, the voluntary quality assurance or control samples described in paragraph (8) that were provided without written consent by persons prior to the enactment of this section, or if the laboratory is otherwise required to retain such case samples by another provision of law. |
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| 82 | 95 | | |
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| 83 | 96 | | (10) This section does not preclude a DNA testing laboratory from conducting a limited comparison of samples that were analyzed concurrently in order to evaluate the DNA typing results for potential contamination, determine the source of contamination when detected, and to ensure that the contaminating profiles were not misidentified as DNA profiles from putative perpetrators. |
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| 84 | 97 | | |
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| 85 | 98 | | (11) This section does not affect the inclusion of samples in state DNA databases as described in Section 295 of the Penal Code, the use of state DNA databases for identifying missing persons, the compliance with other provisions of law that allow the release of samples for postconviction testing, or the use of reference samples from a suspect lawfully collected in a manner that does not violate this section. |
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| 86 | 99 | | |
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| 87 | 100 | | (b) For the purposes of this section, the following definitions apply: |
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| 88 | 101 | | |
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| 89 | 102 | | (1) The incident being investigated means the crime or alleged crime that caused a law enforcement agency or agent to analyze or request a DNA sample from a victim of or witness to that crime or alleged crime. |
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| 90 | 103 | | |
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| 91 | 104 | | (2) An agent of a law enforcement agency includes any person or entity that the agency provides with access to a DNA sample collected directly from the person of a victim of or witness to a crime or alleged crime, or to any profile developed from those samples. This includes, but is not limited to, public or private DNA testing facilities. |
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| 92 | 105 | | |
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| 93 | 106 | | (3) A victim or witness does not include any person who is a target of the investigation of the incident being investigated, if law enforcement agents have probable cause to believe that person has committed a public offense relating to the incident under investigation. |
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| 94 | 107 | | |
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| 95 | 108 | | (4) A sample is voluntarily provided for the purpose of exclusion if law enforcement agents do not consider the individual to be a suspect and have requested a voluntary DNA sample in order to exclude that persons DNA profile from consideration in the current investigation. |
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| 96 | 109 | | |
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| 97 | 110 | | (c) This section does not apply to evidence arising from the victim that is biological material that is not the victims own and is not from an individual who voluntarily provided a reference sample for exclusion, such as DNA transferred from an assailant. |
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| 98 | 111 | | |
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| 99 | 112 | | SEC. 2. Section 680 of the Penal Code is amended to read:680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights.(b) The Legislature finds and declares all of the following:(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.(3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases.(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.(5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.(7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12.(c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur:(1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:(A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.(B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.(2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:(A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.(B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.(3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.(4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.(5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.(6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.(d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee.(2) Subject to the commitment of sufficient resources to respond to requests for information, sexual assault victims have the following rights:(A) The right to be informed whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case.(B) The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank of case evidence.(C) The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.(3) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies.(e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency.(f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention.(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday.(g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.(h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section.(i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.(j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.(k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f). |
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| 100 | 113 | | |
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| 101 | 114 | | SEC. 2. Section 680 of the Penal Code is amended to read: |
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| 102 | 115 | | |
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| 103 | 116 | | ### SEC. 2. |
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| 104 | 117 | | |
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| 105 | 118 | | 680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights.(b) The Legislature finds and declares all of the following:(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.(3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases.(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.(5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.(7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12.(c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur:(1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:(A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.(B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.(2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:(A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.(B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.(3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.(4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.(5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.(6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.(d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee.(2) Subject to the commitment of sufficient resources to respond to requests for information, sexual assault victims have the following rights:(A) The right to be informed whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case.(B) The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank of case evidence.(C) The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.(3) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies.(e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency.(f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention.(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday.(g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.(h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section.(i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.(j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.(k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f). |
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| 106 | 119 | | |
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| 107 | 120 | | 680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights.(b) The Legislature finds and declares all of the following:(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.(3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases.(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.(5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.(7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12.(c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur:(1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:(A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.(B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.(2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:(A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.(B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.(3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.(4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.(5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.(6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.(d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee.(2) Subject to the commitment of sufficient resources to respond to requests for information, sexual assault victims have the following rights:(A) The right to be informed whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case.(B) The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank of case evidence.(C) The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.(3) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies.(e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency.(f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention.(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday.(g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.(h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section.(i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.(j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.(k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f). |
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| 108 | 121 | | |
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| 109 | 122 | | 680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights.(b) The Legislature finds and declares all of the following:(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.(3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases.(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.(5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.(7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12.(c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur:(1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:(A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.(B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.(2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:(A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.(B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.(3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.(4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.(5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.(6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.(d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee.(2) Subject to the commitment of sufficient resources to respond to requests for information, sexual assault victims have the following rights:(A) The right to be informed whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case.(B) The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank of case evidence.(C) The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.(3) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies.(e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency.(f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention.(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday.(g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.(h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section.(i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.(j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.(k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f). |
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| 110 | 123 | | |
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| 111 | 124 | | |
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| 112 | 125 | | |
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| 113 | 126 | | 680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights. |
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| 114 | 127 | | |
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| 115 | 128 | | (b) The Legislature finds and declares all of the following: |
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| 116 | 129 | | |
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| 117 | 130 | | (1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders. |
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| 118 | 131 | | |
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| 119 | 132 | | (2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication. |
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| 120 | 133 | | |
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| 121 | 134 | | (3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases. |
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| 122 | 135 | | |
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| 123 | 136 | | (4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases. |
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| 124 | 137 | | |
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| 125 | 138 | | (5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner. |
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| 126 | 139 | | |
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| 127 | 140 | | (6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803. |
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| 128 | 141 | | |
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| 129 | 142 | | (7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12. |
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| 130 | 143 | | |
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| 131 | 144 | | (c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur: |
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| 132 | 145 | | |
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| 133 | 146 | | (1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016: |
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| 134 | 147 | | |
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| 135 | 148 | | (A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence. |
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| 136 | 149 | | |
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| 137 | 150 | | (B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim. |
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| 138 | 151 | | |
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| 139 | 152 | | (2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016: |
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| 140 | 153 | | |
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| 141 | 154 | | (A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence. |
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| 142 | 155 | | |
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| 143 | 156 | | (B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA. |
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| 144 | 157 | | |
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| 145 | 158 | | (3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator. |
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| 146 | 159 | | |
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| 147 | 160 | | (4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS. |
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| 148 | 161 | | |
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| 149 | 162 | | (5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based. |
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| 150 | 163 | | |
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| 151 | 164 | | (6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault. |
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| 152 | 165 | | |
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| 153 | 166 | | (d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee. |
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| 154 | 167 | | |
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| 155 | 168 | | (2) Subject to the commitment of sufficient resources to respond to requests for information, sexual assault victims have the following rights: |
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| 156 | 169 | | |
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| 157 | 170 | | (A) The right to be informed whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case. |
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| 158 | 171 | | |
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| 159 | 172 | | (B) The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank of case evidence. |
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| 160 | 173 | | |
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| 161 | 174 | | (C) The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation. |
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| 162 | 175 | | |
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| 163 | 176 | | (3) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies. |
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| 164 | 177 | | |
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| 165 | 178 | | (e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency. |
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| 166 | 179 | | |
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| 167 | 180 | | (f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention. |
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| 168 | 181 | | |
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| 169 | 182 | | (2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday. |
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| 170 | 183 | | |
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| 171 | 184 | | (g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case. |
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| 172 | 185 | | |
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| 173 | 186 | | (h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section. |
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| 174 | 187 | | |
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| 175 | 188 | | (i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available. |
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| 176 | 189 | | |
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| 177 | 190 | | (j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside. |
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| 178 | 191 | | |
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| 179 | 192 | | (k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f). |
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| 180 | 193 | | |
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| 181 | 194 | | SEC. 2.5. Section 680 of the Penal Code is amended to read:680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights.(b) The Legislature finds and declares all of the following:(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.(3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases.(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.(5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.(7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12.(c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur:(1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:(A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.(B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.(2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:(A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.(B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.(3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.(4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.(5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.(6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.(d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee.(2) Sexual assault victims have the right to access the Department of Justices SAFE-T database portal consistent with subdivision (e) of Section 680.3 for information involving their own forensic kit and the status of the kit.(3) Sexual assault victims have the right to be informed of the following:(A) Whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case.(B) Whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank or the federal Department of Justice or Federal Bureau of Investigation CODIS database of case evidence.(C) Whether or not there is a confirmed match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.(4) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies.(e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency.(f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention.(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday.(g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.(h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section.(i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.(j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.(k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f). |
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| 182 | 195 | | |
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| 183 | 196 | | SEC. 2.5. Section 680 of the Penal Code is amended to read: |
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| 184 | 197 | | |
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| 185 | 198 | | ### SEC. 2.5. |
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| 186 | 199 | | |
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| 187 | 200 | | 680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights.(b) The Legislature finds and declares all of the following:(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.(3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases.(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.(5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.(7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12.(c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur:(1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:(A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.(B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.(2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:(A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.(B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.(3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.(4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.(5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.(6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.(d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee.(2) Sexual assault victims have the right to access the Department of Justices SAFE-T database portal consistent with subdivision (e) of Section 680.3 for information involving their own forensic kit and the status of the kit.(3) Sexual assault victims have the right to be informed of the following:(A) Whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case.(B) Whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank or the federal Department of Justice or Federal Bureau of Investigation CODIS database of case evidence.(C) Whether or not there is a confirmed match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.(4) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies.(e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency.(f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention.(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday.(g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.(h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section.(i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.(j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.(k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f). |
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| 188 | 201 | | |
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| 189 | 202 | | 680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights.(b) The Legislature finds and declares all of the following:(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.(3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases.(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.(5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.(7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12.(c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur:(1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:(A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.(B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.(2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:(A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.(B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.(3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.(4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.(5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.(6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.(d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee.(2) Sexual assault victims have the right to access the Department of Justices SAFE-T database portal consistent with subdivision (e) of Section 680.3 for information involving their own forensic kit and the status of the kit.(3) Sexual assault victims have the right to be informed of the following:(A) Whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case.(B) Whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank or the federal Department of Justice or Federal Bureau of Investigation CODIS database of case evidence.(C) Whether or not there is a confirmed match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.(4) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies.(e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency.(f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention.(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday.(g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.(h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section.(i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.(j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.(k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f). |
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| 190 | 203 | | |
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| 191 | 204 | | 680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights.(b) The Legislature finds and declares all of the following:(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.(3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases.(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.(5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.(7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12.(c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur:(1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:(A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.(B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.(2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016:(A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.(B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.(3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.(4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.(5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.(6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.(d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee.(2) Sexual assault victims have the right to access the Department of Justices SAFE-T database portal consistent with subdivision (e) of Section 680.3 for information involving their own forensic kit and the status of the kit.(3) Sexual assault victims have the right to be informed of the following:(A) Whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case.(B) Whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank or the federal Department of Justice or Federal Bureau of Investigation CODIS database of case evidence.(C) Whether or not there is a confirmed match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.(4) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies.(e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency.(f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention.(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday.(g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.(h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section.(i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.(j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.(k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f). |
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| 192 | 205 | | |
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| 193 | 206 | | |
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| 194 | 207 | | |
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| 195 | 208 | | 680. (a) This section shall be known as and may be cited as the Sexual Assault Victims DNA Bill of Rights. |
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| 196 | 209 | | |
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| 197 | 210 | | (b) The Legislature finds and declares all of the following: |
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| 198 | 211 | | |
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| 199 | 212 | | (1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders. |
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| 200 | 213 | | |
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| 201 | 214 | | (2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication. |
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| 202 | 215 | | |
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| 203 | 216 | | (3) Victims of sexual assaults have a strong interest in the investigation and prosecution of their cases. |
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| 204 | 217 | | |
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| 205 | 218 | | (4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases. |
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| 206 | 219 | | |
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| 207 | 220 | | (5) The growth of the Department of Justices Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner. |
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| 208 | 221 | | |
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| 209 | 222 | | (6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803. |
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| 210 | 223 | | |
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| 211 | 224 | | (7) DNA reference samples collected directly from a victim of sexual assault, and reference samples of DNA collected from any individual that were voluntarily provided for the purpose of exclusion, shall be protected as provided in Section 679.12. |
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| 212 | 225 | | |
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| 213 | 226 | | (c) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following shall occur: |
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| 214 | 227 | | |
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| 215 | 228 | | (1) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a occurred shall do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016: |
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| 216 | 229 | | |
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| 217 | 230 | | (A) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence. |
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| 218 | 231 | | |
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| 219 | 232 | | (B) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim. |
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| 220 | 233 | | |
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| 221 | 234 | | (2) The crime lab shall do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016: |
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| 222 | 235 | | |
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| 223 | 236 | | (A) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence. |
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| 224 | 237 | | |
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| 225 | 238 | | (B) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab shall upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA. |
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| 226 | 239 | | |
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| 227 | 240 | | (3) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator. |
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| 228 | 241 | | |
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| 229 | 242 | | (4) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS. |
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| 230 | 243 | | |
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| 231 | 244 | | (5) For purposes of this section, a rapid turnaround DNA program is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based. |
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| 232 | 245 | | |
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| 233 | 246 | | (6) For the purpose of this section, law enforcement means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault. |
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| 234 | 247 | | |
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| 235 | 248 | | (d) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 286, 287, or 289 or of former Section 262 or 288a shall inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victims case. The law enforcement agency may, at its discretion, require that the victims request be in writing. The law enforcement agency shall respond to the victims request with either an oral or written communication, or by email, if an email address is available. This subdivision does not require that the law enforcement agency communicate with the victim or the victims designee regarding the status of DNA testing absent a specific request from the victim or the victims designee. |
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| 236 | 249 | | |
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| 237 | 250 | | (2) Sexual assault victims have the right to access the Department of Justices SAFE-T database portal consistent with subdivision (e) of Section 680.3 for information involving their own forensic kit and the status of the kit. |
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| 238 | 251 | | |
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| 239 | 252 | | (3) Sexual assault victims have the right to be informed of the following: |
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| 240 | 253 | | |
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| 241 | 254 | | (A) Whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case. |
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| 242 | 255 | | |
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| 243 | 256 | | (B) Whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank or the federal Department of Justice or Federal Bureau of Investigation CODIS database of case evidence. |
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| 244 | 257 | | |
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| 245 | 258 | | (C) Whether or not there is a confirmed match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation. |
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| 246 | 259 | | |
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| 247 | 260 | | (4) This subdivision is intended to encourage law enforcement agencies to notify victims of information that is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies. |
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| 248 | 261 | | |
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| 249 | 262 | | (e) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be informed, either orally or in writing, of that fact by the law enforcement agency. |
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| 250 | 263 | | |
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| 251 | 264 | | (f) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, a victim of a violation of Section 261, 261.5, 286, 287, or 289 or former Section 262 or 288a shall be given written notification by the law enforcement agency of that intention. |
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| 252 | 265 | | |
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| 253 | 266 | | (2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before at least 20 years, or if the victim was under 18 years of age at the time of the alleged offense, before the victims 40th birthday. |
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| 254 | 267 | | |
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| 255 | 268 | | (g) Written notification under subdivision (e) or (f) shall be made at least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case. |
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| 256 | 269 | | |
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| 257 | 270 | | (h) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victims choosing, to act as a recipient of the above information required to be provided by this section. |
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| 258 | 271 | | |
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| 259 | 272 | | (i) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (d) do so in a timely manner and, upon request of the victim or the victims designee, advise the victim or the victims designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victims designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available. |
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| 260 | 273 | | |
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| 261 | 274 | | (j) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside. |
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| 262 | 275 | | |
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| 263 | 276 | | (k) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agencys failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (e) or (f). |
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| 264 | 277 | | |
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| 265 | 278 | | SEC. 3. Section 2.5 of this bill incorporates amendments to Section 680 of the Penal Code proposed by both this bill and Senate Bill 916. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2023, (2) each bill amends Section 680 of the Penal Code, and (3) this bill is enacted after Senate Bill 916, in which case Section 2 of this bill shall not become operative. |
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| 266 | 279 | | |
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| 267 | 280 | | SEC. 3. Section 2.5 of this bill incorporates amendments to Section 680 of the Penal Code proposed by both this bill and Senate Bill 916. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2023, (2) each bill amends Section 680 of the Penal Code, and (3) this bill is enacted after Senate Bill 916, in which case Section 2 of this bill shall not become operative. |
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| 268 | 281 | | |
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| 269 | 282 | | SEC. 3. Section 2.5 of this bill incorporates amendments to Section 680 of the Penal Code proposed by both this bill and Senate Bill 916. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2023, (2) each bill amends Section 680 of the Penal Code, and (3) this bill is enacted after Senate Bill 916, in which case Section 2 of this bill shall not become operative. |
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| 270 | 283 | | |
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| 271 | 284 | | ### SEC. 3. |
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| 272 | 285 | | |
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| 273 | 286 | | SEC. 4. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. |
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| 274 | 287 | | |
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| 275 | 288 | | SEC. 4. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. |
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| 276 | 289 | | |
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| 277 | 290 | | SEC. 4. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. |
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| 278 | 291 | | |
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| 279 | 292 | | ### SEC. 4. |
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