The California Department of the Youth Authority (Department) finds that an emergency exists and the adoption of emergency regulations are necessary for the immediate preservation of the public peace, health and safety or general welfare.
Additionally, as stated in Section 11349 (f) of the Government Code regarding "Nonduplication", 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.
Specific Facts Showing the Need for Immediate Action
The Department has no regulatory standard for the immediate collection of and submission of deoxyribonucleic acid (DNA) specimens, samples, and impressions from all wards and parolees under the jurisdiction of the Department after having been convicted of, found guilty of, having pled guilty to or no contest to, or having been found not guilty by reason of insanity for, any felony offense, or whose records indicate a prior conviction for such an offense, or any juvenile who is adjudicated under Section 602 of the Welfare and Institutions Code for committing any felony offense.
The Department is required by Proposition 69, which was passed by the People of the State of California on November 2, 2004, to retroactively participate in the expansion of the statewide DNA Database. The data gathered by this DNA process is used by law enforcement agencies statewide to protect public safety by identifying, detecting and prosecuting persons accused of felon offenses; exonerating innocent suspects; and assist in identifying missing or unidentified persons. Proposition 69 requires that the Department collect or obtain the specimens, samples, and impressions from every ward in the state whether in custody or on parole for a felony offense immediately.
The Departments failure to proceed with this Emergency Rulemaking will result in the delay of the Departments ability to be in compliance with the gathering of the DNA specimens and submission of these specimens to the DOJ/DNA Databank. This statute has been designed to protect the public welfare and to expedite the process of collecting the DNA specimens, which will reduce the threat to potential victims by allowing the Department to identify criminal offenders in a timely manner.
If the Department is forced to go through the normal Rulemaking process, rather than the Emergency process, this will not be possible. This will then leave more citizens subject to criminal behavior. Implementing these Emergency Regulations could exonerate current offenders by the collection of DNA Specimens. Additionally, it would further identify perpetrators of unsolved crimes and previously unidentified human remains could then be identified.
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 could be prevented.
The nature of the Departments offender population may require a "use of force" to be performed in order to obtain the DNA specimens. The "use of force" will be reasonable and controlled.
Authority cited: Section 1712, Welfare and Institutions Code; Sections 295, 295.1, 296, 296.1, 298, 298.1, Penal Code (PC). Proposition 69, November 2, 2004.
Sections 295, 295.1, 296, 296.1, 298, 298.1, Penal Code.
Informative Digest/Policy Statement Overview
Existing law, Section 1712 of the Welfare and Institutions Code, assigns responsibility to the Department to make and enforce all rules appropriate to the proper accomplishment of the functions of the Department.
Existing law, stated in Sections 295, 295.1, 296, 296.1, 298, 298.1 of the Penal Code (PC), require that the Department shall obtain deoxyribonucleic acid (DNA) specimens, samples, and impressions from wards and parolees in the care and custody of the Department for submission to the Department of Justice (DOJ) DNA and Forensic Identification Database and Data Bank Act of 1998.
PC Sections 295 and 295.1 identifies and specifies the Department's responsibility to develop policy and enact regulations to implement the collection of DNA specimens and impressions. The Department is then responsible to see that the specimens and impressions are sent to the repository located at DOJ.
PC Sections 296 and 296.1 identifies offenders subject to the collection of DNA specimens, samples and impressions.
PC Section 298 specifies that the DOJ is responsible for providing to the Department the approved DNA collection kit. The DOJ shall provide all blood specimen vials, mailing tubes, labels, and instruction for the collection of blood specimens, buccal swab samples and impressions. The gathered DNA specimens are then immediately forwarded to the DNA Laboratory of the Department of Justice. PC Section 298.1 identifies the steps to be taken when a ward or parolee refuses or fails to provide specimens; detailing punishment to that ward or parolee from such refusal.
Proposition 69 specifically requires that all wards and parolees under the jurisdiction of the Department after having been convicted of, found guilty of, having pled guilty to or no contest to, or having been found not guilty by reason of insanity for, any felony offense, or whose records indicate a prior conviction for such an offense, or any juvenile who is adjudicated under Section 602 of the Welfare and Institutions Code for committing any felony offense, shall provide all of the following required specimens, to be submitted to DOJ as soon as administratively practicable:
(1) One Buccal Swab Sample,
(2) Two Right Thumb Print Impressions,
(3) Full Right and Left Full Palm Print Impressions.
This proposed regulatory action will ensure that the Department is in compliance with the passage of Proposition 69 and the Department shall collect biological DNA specimens and impressions, such as blood specimen, buccal swab samples, thumb and palm print impressions, from all wards and parolees who are 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. The DNA specimens shall be collected only by designated medical Departmental personnel and DNA specimens shall be taken in accordance with medical standards. Any ward or parolee who refuses to give any or all of the specimens, samples or impressions, after having received written notice, will be guilty of a separate misdemeanor offense.
Additionally, this regulatory proposal will identify and describe 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 Departments attempt to obtain the required DNA specimens. Failure by the ward or parolee to comply with the DNA specimen requirements shall be subject to sanctions to the Disciplinary Decision-Making System (DDMS). The refusal is considered misconduct by the ward or parolee and is reportable to the Youth Authority Administrative Committee and Youth Authority Board.
Local Mandate and Fiscal Determinations
The department has determined that the proposed regulations do not impose: 1) a mandate on local agencies or school districts, 2) costs for which reimbursement is required pursuant to Part 7 (commencing with section 17500) of Division 4 of the Government Code; 3) other non-discretionary costs or savings upon local agencies; or 4) costs or savings in federal funding.
This regulation will however impose: 1) costs to the Department.
The estimated costs by the Department to implement the expansion of the DNA Bank pursuant to Proposition 69 are $563,000. The Department has requested a one-time funding for fiscal year 2005/06 of $433,000 to retroactively collect DNA samples from the Departments wards and parolees, pursuant to Proposition 69. The Department has also requested $92,000 in one-time funding to make necessary changes to the current Offender Based Information Tracking System and Parole's Field Information System (FIS) modification. Additionally, this proposal requests $38,000 in ongoing funding beginning July 1, 2006, for continuing clinic operations associated with implementation of Proposition 69.