DJJ Regulations

Initial Statement of Reasons

DEPARTMENT OF THE YOUTH AUTHORITY

TITLE 15, CALIFORNIA CODE OF REGULATIONS

DIVISION 4, CHAPTER 1, ARTICLE 7

Collection of DNA Specimens

Adopt Sections: 4141 and 4141.1

INITIAL STATEMENT OF REASONS

Specific Purpose of the Regulation

The proposed regulatory action will ensure that the California Department of the Youth Authority (Department) is in compliance with the passage of Proposition 69 passed by the People of the State of California on November 2, 2004, which mandates that all wards and parolees under the jurisdiction of the Department, after having been convicted of, found guilty of, having pled no contest to, or having been found not guilty by reason of insanity, of any felony offense, or whose records indicate a prior conviction for such an offense, or any juvenile adjudicated under Section 602 of the Welfare and Institutions Code for committing any felony offense, shall provide biological specimens to the Department for submission to the Department of Justice (DOJ) for its deoxyribonucleic acid (DNA) and Forensic Identification Database and Data Bank Program .

Failure by the Department to obtain a DNA Specimen from offenders being paroled, discharged or even an escapee, could result in additional criminal behavior toward the public. Through the DNA gathering and submission to the DNA Databank, these crimes against the public could be prevented.

Collection and submission to the DNA Databank of the required DNA Specimens could exonerate current offenders. Additionally, it will further identify perpetrators of unsolved crimes and previously unidentified human remains could then be identified.

The specific purpose of each section is described as follows:

  • § 4141 - This section states that the Department shall collect biological DNA specimens and impressions such as blood specimens, buccal swab, thumb and palm print impressions, from all wards and parolees under the jurisdiction of the Department. All wards and parolees shall provide the listed specimens within five working days of arrival at the Department's reception center or intake site. DNA specimens shall also be collected when a ward or parolee is transferred or paroled from another state and accepted into California or when DOJ notifies the Department of an unusable specimen, or if a parolee is returned to custody after any type of release. Only designated Departmental medical personnel shall collect the DNA specimens and DNA specimens shall be taken in accordance with medical standards.
  • § 4141.1 - This section describes and defines the "use of reasonable force" that an objective, trained and competent correctional employee, will consider necessary, when faced with the refusal by any ward or parolee to comply with the Department's attempt to obtain the required DNA specimens.
The nature of the Departments offender population may require a "use of force" to be performed in order to obtain the DNA specimen. The "use of force" will be reasonable and controlled. In instances where a "use of force" is necessary, the DNA specimen will be extracted by way of a blood sample. A blood specimen is the only other alternative to obtaining an accurate DNA specimen when the buccal swab has been refused. The buccal swab specimen cannot be obtained from an uncooperative offender. The Department cannot force the buccal swab into the mouth of the offender, thereby forcibly taking the sample. The buccal swab requires complete cooperation by the offender and is very exact in how the sample transfers to the applicator. There is a high safety risk to the offender as well as a safety and security risk to the staff. There is a potential risk for a staff person to be bitten as well as other health and safety concerns regarding bodily fluid or other fluids that the offender may use to taint the specimen. The "use of force" extraction of a blood specimen will be done in a by medically trained personnel and will be humane to the offender.

This section also identifies that failure by the ward or parolee to comply with the requirements of the DNA and the Forensic Identification Database and Data Bank Act of 1998, is punishable as a separate misdemeanor offense and shall also be subject to sanctions pursuant to the Disciplinary Decision-Making System. A ward or parolee's refusal to comply is considered a serious misconduct and is reportable to the Youth Authority Administrative Committee and Youth Authority Board.

As stated in Section 11349 (f) of the Government Code regarding "Non-duplication", the Department is proposing to make specific the DNA Fingerprint, Unsolved Crime and Innocent Protection Act as well as SB 1242, Criminal Identification. The Department is duplicating because we believe we need to present the regulatory requirements in contacts with the statute as a coherent single explanation of what the law requires so that the people who will refer to the regulation to guide their conduct will know what is required of them when forcibly taking DNA Specimens.

Necessity

The adoption of the proposed regulations is necessary to ensure that the Department be in compliance with the passage of Proposition 69, which mandates the collection of biological DNA specimens from all wards and parolees under the jurisdiction of the Department.

Technical, Theoretical, and/or Empirical Study, Reports or Documents

The Department did not rely upon any other technical, theoretical, or empirical studies, reports, or documents in proposing the adoption and amendment of these regulations.

Reasonable Alternatives to the Proposed Regulatory Action

The Department finds that no reasonable alternatives to the proposed regulatory action are necessary because the promulgation of regulations is required to implement, interpret, or make specific, statutes. This regulatory action is proposed to implement, interpret, or make specific Sections 295, 295.1, 296, 296.1, 298, 298.1 of the Penal Code.

Alternatives to the Proposed Regulatory Action That Would Lessen Any Adverse Economic Impact on Small Business

The Department finds that no alternatives to lessen any adverse economic impact on small business are necessary. The collection and submission of DNA specimens from wards under the care and custody of the Department have no effect on small businesses.

Impact on Businesses

The Department has made an initial determination that the adoption of the proposed regulations will not have a significant statewide adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states, because the proposed regulations ensures that the Department is in compliance with Proposition 69, and the collection of DNA specimens from wards or parolees under the care and jurisdiction of the Department and this has no affect on California businesses.