July 21, 2019
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       Florida Senate - 2009                                    SB 2276
       
       
       
       By Senator Oelrich
       
       
       
       
       14-01516B-09                                          20092276__
    1                        A bill to be entitled                      
    2         An act relating to a DNA database; providing a short
    3         title; amending s. 943.325, F.S.; providing
    4         legislative intent; providing definitions; providing a
    5         phase-in schedule whereby persons arrested for
    6         specified felony offenses will be required to provide
    7         DNA samples to the Department of Law Enforcement until
    8         all persons arrested for felony offenses will be
    9         required to provide such samples; requiring reports;
   10         providing for a statewide automated personal
   11         identification system capable of classifying,
   12         matching, and storing analyses of DNA and other data;
   13         providing for access; specifying duties of the
   14         department; providing that the database may contain
   15         DNA for certain types of samples; specifying offenders
   16         from whom DNA is to be collected; authorizing the use
   17         of reasonable force to collect samples; providing an
   18         exemption from liability for use of such force;
   19         providing for collection of samples from specified
   20         offenders from out of state; requiring the department
   21         to provide sample containers; providing requirements
   22         for information to be submitted with each sample;
   23         providing for court orders for samples; authorizing
   24         prosecutors to seek court orders in certain
   25         circumstances; providing that a convicted person shall
   26         pay the actual costs of collecting the approved
   27         biological specimens unless declared indigent;
   28         providing that certain failures to strictly comply
   29         with statute or protocol may not provide grounds for
   30         challenging the validity of the collection or the use
   31         of a DNA sample in court and evidence based upon or
   32         derived from the collected DNA sample may not be
   33         excluded by a court; providing that the detention,
   34         arrest, or conviction of a person based upon a
   35         database match or database information will not be
   36         invalidated if it is later determined that the sample
   37         was obtained or placed in the database by mistake;
   38         providing for retention of samples; providing for
   39         analysis of samples; requiring that DNA analysis and
   40         the comparison of analytic results shall be released
   41         only to criminal justice agencies; providing a public
   42         records exemption for such information; prohibiting
   43         willfully refusing to provide a DNA sample; providing
   44         penalties; prohibiting specified offenses relating to
   45         disclosing DNA records, using records without
   46         authorization, or tampering with DNA samples or
   47         analysis results; providing penalties; amending ss.
   48         760.40 and 948.014, F.S.; conforming provisions to
   49         changes made by this act; providing an effective date.
   50  
   51  Be It Enacted by the Legislature of the State of Florida:
   52  
   53         Section 1. This act may be cited as the “DNA Database Act.”
   54         Section 2. Section 943.325, Florida Statutes, is amended to
   55  read:
   56         (Substantial rewording of section. See
   57         s. 943.325, F.S., for present text)
   58         943.325 DNA database.—
   59         (1) LEGISLATIVE INTENT.—
   60         (a) The Legislature finds that DNA databases are important
   61  tools in criminal investigations, in the exclusion of
   62  individuals who are the subject of criminal investigations or
   63  prosecutions and in detecting recidivist acts. It is the policy
   64  of this state to assist federal, state, and local criminal
   65  justice and law enforcement agencies in the identification and
   66  detection of individuals in criminal investigations and the
   67  identification and location of missing and unidentified persons.
   68  Therefore, it is in the best interests of the citizens of this
   69  state to establish a statewide DNA database containing DNA
   70  samples submitted by persons convicted of or arrested for felony
   71  offenses and convicted of certain misdemeanor offenses.
   72  Additionally, the statewide DNA database shall include DNA
   73  records and samples necessary for the identification of missing
   74  persons and unidentified human remains, including DNA samples
   75  voluntarily contributed by relatives of missing persons.
   76         (b) The Legislature also finds that upon establishment of
   77  the Florida DNA database a match between casework evidence DNA
   78  samples from a criminal investigation and DNA samples from a
   79  state or federal DNA database of certain offenders may be used
   80  to find probable cause for the issuance of a warrant to obtain
   81  the DNA sample from an offender.
   82         (2) DEFINITIONS.—As used in this section, the term:
   83         (a) “Arrested” means apprehended or physically taken into
   84  custody, resulting in the submission of arrest fingerprints to
   85  the department, pursuant to s. 943.051.
   86         (b) “CODIS” means the Federal Bureau of Investigation’s
   87  Combined DNA Index System that allows the storage and exchange
   88  of DNA records submitted by federal, state, and local forensic
   89  DNA laboratories.
   90         (c) “Convicted” means a finding of guilt by a court of
   91  competent jurisdiction, or entry of a plea of nolo contendere or
   92  guilty, or, in the case of a juvenile, the finding of
   93  delinquency, regardless of adjudication.
   94         (d) “DNA” means deoxyribonucleic acid. DNA is located in
   95  the cells and provides an individual’s personal genetic
   96  blueprint. DNA encodes genetic information that is the basis of
   97  human heredity and forensic identification.
   98         (e) “DNA record” means all information associated with the
   99  collection and analysis of a person’s DNA sample, including the
  100  distinguishing characteristics collectively referred to as a DNA
  101  profile.
  102         (f) “DNA sample” means a buccal or other approved
  103  biological specimen capable of undergoing DNA analysis.
  104         (g) “Qualifying offender” means any person, including
  105  juveniles and adults committed to a county jail or committed to
  106  or under the supervision of the Department of Corrections or the
  107  Department of Juvenile Justice, including persons incarcerated
  108  in a private correctional institution operated under contract
  109  pursuant to s. 944.105, and persons transferred to this state
  110  under the Interstate Compact on Juveniles, part XIII of chapter
  111  985, or accepted under Article IV of the Interstate Corrections
  112  Compact, part III of chapter 941, and any person required to
  113  register as a sexual offender or sexual predator as defined in
  114  s. 943.0435, s. 775.21, s. 944.607, or s. 985.4815, who is:
  115         1. Convicted of any felony offense or attempted felony
  116  offense or a similar offense in another jurisdiction, or any
  117  misdemeanor violation of s. 784.048, s. 787.025, s. 794.027, s.
  118  800.02, s. 800.03, s. 810.14, s. 847.011, s. 847.013, s.
  119  847.0135, or s. 877.26, or an offense that was found, pursuant
  120  to s. 874.04, to have been committed for the purpose of
  121  benefiting, promoting, or furthering the interests of a criminal
  122  gang as defined in s. 874.03; or
  123         2. Arrested for any felony offense committed in this state,
  124  under the following conditions:
  125         a. Subject to sufficient funding appropriations passed by
  126  the Legislature and approved by the Governor for each phase of
  127  expansion of DNA sample collection in this sub-subparagraph, and
  128  after determination and official notification to submitting
  129  agencies by the department that it has sufficient
  130  infrastructure, facilities, and personnel to receive such
  131  samples, all persons arrested for or charged with any of the
  132  following felony offenses shall be required to submit a DNA
  133  sample at the time they are booked into a jail, correctional
  134  facility, or juvenile facility:
  135         (I) Beginning January 1, 2011, all felonies defined by
  136  chapters 782, 784, 794, and 800.
  137         (II) Beginning January 1, 2013, all felonies defined by
  138  chapters 810 and 812.
  139         (III) Beginning January 1, 2015, all felonies defined by
  140  chapters 787 and 790.
  141         (IV) Beginning January 1, 2017, all felonies defined by
  142  chapter 893.
  143         (V) Beginning January 1, 2019, all felony offenses.
  144         b. The department may reject submissions of samples
  145  received for any felony arrests prior to funding of any phase
  146  set forth in this subparagraph or received prior to the
  147  department’s official notification to the submitting agency as
  148  provided in this section.
  149         c. On or before February 1, 2010, and by February 1 of each
  150  even-numbered year thereafter through 2018, the department shall
  151  provide the Legislature with a report listing the funding,
  152  infrastructure, facility, and personnel requirements for the DNA
  153  database and DNA evidentiary analysis for the expansion phase
  154  scheduled for the following year.
  155         (3) STATEWIDE DNA DATABASE.—The department, through the
  156  statewide criminal laboratory analysis system shall establish,
  157  implement, and maintain a statewide automated personal
  158  identification system capable of, but not limited to,
  159  classifying, matching, and storing analyses of DNA and other
  160  biological molecules and related data. The department shall be
  161  the administrator of the statewide DNA database. All accredited
  162  local government crime laboratories within the state shall have
  163  access through CODIS to the statewide DNA database in accordance
  164  with the rules and agreements established by the department.
  165         (4) DUTIES.—The department shall:
  166         (a) Receive, process, and store DNA and the data derived
  167  therefrom furnished pursuant to this section.
  168         (b) Collect, process, maintain, and disseminate information
  169  and records as provided by this section.
  170         (c) Strive to maintain and disseminate only accurate and
  171  complete records.
  172         (d) Participate in the national DNA database program
  173  administered by the Federal Bureau of Investigation.
  174         (e) Provide for liaison with the Federal Bureau of
  175  Investigation and other criminal justice agencies relating to
  176  the state’s participation in the CODIS program and the national
  177  DNA index system.
  178         (f) Adopt rules specifying the proper procedure, including
  179  requisite identification information, for state and local law
  180  enforcement and correctional agencies to collect and submit DNA
  181  samples pursuant to this section.
  182         (5) SAMPLES.—The statewide DNA database may contain DNA
  183  data obtained from the following types of biological samples:
  184         (a) Crime scene samples.
  185         (b) Samples obtained from qualifying offenders required by
  186  this section to provide a biological sample for DNA analysis and
  187  inclusion in the statewide DNA database.
  188         (c) Samples lawfully obtained during the course of a
  189  criminal investigation.
  190         (d) Samples from deceased victims or suspects that were
  191  lawfully obtained during the course of a criminal investigation.
  192         (e) Samples from unidentified human remains.
  193         (f) Samples from persons reported missing.
  194         (g) Samples voluntarily contributed by relatives of missing
  195  persons.
  196         (h) Other samples approved by the department.
  197         (6) COLLECTION OF DNA SAMPLES FROM OFFENDERS.—
  198         (a) Any qualifying offender, who is:
  199         1. Arrested in this state;
  200         2. Incarcerated in this state; or
  201         3. On probation, community control, parole, conditional
  202  release, control release, or any other type of court-ordered
  203  supervision in this state
  204  
  205  shall be required to submit a DNA sample to a department
  206  designated facility.
  207         (b) Arrested qualifying offenders must submit a DNA sample
  208  at the time they are booked into a jail, correctional facility,
  209  or juvenile facility.
  210         (c) Incarcerated persons and those in the custody of the
  211  Department of Juvenile Justice must submit required DNA samples
  212  not less than 45 days before their presumptive date of release
  213  from such incarceration or commitment.
  214         (d) Upon the conviction of any qualifying offender which
  215  results in the commitment of the offender to a county jail,
  216  correctional facility, or juvenile facility, the entity
  217  responsible for the jail or facility shall ensure that a DNA
  218  sample is promptly secured and transmitted to the department.
  219  Personnel at the jail, correctional facility, or juvenile
  220  facility shall collect the DNA samples as part of the regular
  221  processing of qualifying offenders committed to the jail or
  222  facility.
  223         (e) If a qualifying offender is not incarcerated following
  224  conviction, that offender may not be released from the custody
  225  of the court at the time of sentencing or released pursuant to a
  226  bond or surety until the DNA sample required by this section has
  227  been taken by the sheriff or his or her designee. The sheriff
  228  shall secure, process, and transmit the DNA sample to the
  229  department in a timely manner.
  230         (7) REASONABLE FORCE.—Duly authorized law enforcement and
  231  corrections personnel may employ reasonable force in cases where
  232  a qualified offender refuses to provide a DNA sample required
  233  under this section, and no such employee shall be civilly or
  234  criminally liable for the use of such reasonable force.
  235         (8) OUT-OF-STATE OFFENDERS.—Any qualifying offender who is:
  236         (a) Transferred to this state under the Interstate Compact
  237  on Juveniles, part XIII of chapter 985, for a felony offense or
  238  attempted felony offense; or
  239         (b) Accepted under Article IV of the Interstate Corrections
  240  Compact, part III of chapter 941, for a felony offense or
  241  attempted felony offense
  242  
  243  shall provide a DNA sample pursuant to this section to the
  244  entity responsible for supervision of the offender, who shall
  245  ensure that the DNA sample is collected in a manner approved by
  246  the department and promptly secured and transmitted to the
  247  department.
  248         (9)COLLECTION; LIABILITY.—
  249         (a) The collection of DNA samples may be performed by any
  250  person using a collection kit approved by the department as
  251  directed in the kit or pursuant to other procedures approved by
  252  or acceptable to the department.
  253         (b) Any person who collects or assists in the collection of
  254  a DNA sample is not civilly or criminally liable if a collection
  255  kit provided or approved by the department is used and the
  256  collection is done as directed in the kit, in a manner approved
  257  by the department, or is performed in an otherwise reasonable
  258  manner.
  259         (10) SAMPLES.—The department will provide the DNA sample
  260  collection kits, labels, or other appropriate containers and
  261  instructions for the collection of the DNA samples. After
  262  collection, the DNA samples shall be forwarded to the department
  263  for analysis to determine genetic markers and characteristics
  264  for the purpose of individual identification of the person
  265  submitting the sample.
  266         (a) At minimum, the following information must be included
  267  with each submission:
  268         1. The qualifying offender’s last name, first name, date of
  269  birth, race, gender, and State Identification (SID) number if
  270  known.
  271         2. The statute number of each offense charged.
  272         3. The collecting agency’s name and address.
  273         4. The name and telephone number of the person performing
  274  the collection of the DNA sample or witnessing the collection of
  275  the sample.
  276         (b) If a DNA sample submitted to the department under this
  277  section cannot be used by the department in the manner and for
  278  the purposes required by this section, the department may
  279  require that another DNA sample be obtained.
  280         (11) COURT ORDERS; COSTS.—The sentencing court shall
  281  include in the judgment order for a qualifying offender a
  282  provision requiring collection of a DNA sample from the
  283  defendant in a manner consistent with this section.
  284         (a) Unless a convicted person has been declared indigent by
  285  the court, the convicted person shall pay the actual costs of
  286  collecting the approved biological specimens required under this
  287  section.
  288         (b) If the order of a sentencing court fails to order a
  289  qualifying offender to submit a DNA sample as mandated by this
  290  section, the prosecutor may seek an amended order from the
  291  sentencing court requiring submission of a DNA sample in
  292  compliance with this section. In the alternative, the
  293  department, the Department of Corrections, a law enforcement
  294  agency, or a prosecutor may apply to the appropriate circuit
  295  court with jurisdiction for an order authorizing the seizure of
  296  the qualifying offender for the purpose of securing the required
  297  DNA sample.
  298         1. The court shall issue the order upon a showing of
  299  probable cause.
  300         2. Following issuance of the order, the DNA sample shall be
  301  collected in a reasonable manner and the qualifying offender
  302  shall be released unless there is cause to justify retaining the
  303  offender in custody.
  304         (c) Failure by a law enforcement agency or other entity
  305  involved in collection of DNA samples under this section to
  306  strictly comply with this section or to abide by a statewide
  307  protocol for collecting DNA samples is not grounds for
  308  challenging the validity of the collection or the use of a DNA
  309  sample in court and evidence based upon or derived from the
  310  collected DNA sample may not be excluded by a court.
  311         (d) The detention, arrest, or conviction of a person based
  312  upon a database match or database information will not be
  313  invalidated if it is later determined that the sample was
  314  obtained or placed in the database by mistake.
  315         (e) All DNA samples submitted to the department for any
  316  reason shall be retained in the statewide DNA database and may
  317  be used for all lawful purposes as provided in this section.
  318         (12) ANALYSIS OF DNA SAMPLES.—
  319         (a) The department shall specify procedures for the
  320  collection, submission, identification, analysis, storage, and
  321  disposition of the DNA samples and DNA records collected under
  322  this section. These procedures shall also ensure compliance with
  323  national quality assurance standards so that the DNA records may
  324  be accepted into the national DNA database.
  325         (b) The analyses of DNA samples collected under this
  326  section shall be used only for law enforcement identification
  327  purposes or to assist in the recovery or identification of human
  328  remains or missing persons and may not be used for
  329  identification of any medical or genetic condition.
  330         (c) When completed, the results of DNA analysis shall be
  331  entered into the statewide DNA database maintained and
  332  administered by the department for such purpose, as provided in
  333  this section.
  334         (13) RESULTS.—The results of a DNA analysis and the
  335  comparison of analytic results shall be released only to
  336  criminal justice agencies as defined in s. 943.045(10), at the
  337  request of the agency. Otherwise, such information is
  338  confidential and exempt from the provisions of s. 119.07(1) and
  339  s. 24(a), Art. I of the State Constitution.
  340         (14) OFFENSES AND PENALTIES.—
  341         (a) Any person subject to the requirements of this section
  342  who willfully refuses to provide a DNA sample commits a
  343  misdemeanor of the second degree, punishable as provided in s.
  344  775.082 or s. 775.083.
  345         (b) Any person who:
  346         1. Knowingly or intentionally discloses a DNA record,
  347  including the results of a DNA analysis, to a person or agency
  348  other than one authorized to have access to such records under
  349  this section;
  350         2. Knowingly or intentionally uses or receives DNA records,
  351  including the results of DNA analysis, for purposes other than
  352  those authorized under this section; or
  353         3. Knowingly or intentionally tampers or attempts to tamper
  354  with any DNA sample, the result of any analysis of a DNA sample,
  355  or a DNA sample collection container
  356  
  357  commits a felony of the third degree, punishable as provided in
  358  s. 775.082, s. 775.083, or s. 775.084.
  359         Section 3. Paragraph (a) of subsection (2) of section
  360  760.40, Florida Statutes, is amended to read:
  361         760.40 Genetic testing; informed consent; confidentiality;
  362  penalties; notice of use of results.—
  363         (2)(a) Except for purposes of criminal prosecution, except
  364  for purposes of determining paternity as provided in s. 409.256
  365  or s. 742.12(1), and except for purposes of acquiring specimens
  366  from persons convicted of certain offenses or as otherwise
  367  provided in s. 943.325, DNA analysis may be performed only with
  368  the informed consent of the person to be tested, and the results
  369  of such DNA analysis, whether held by a public or private
  370  entity, are the exclusive property of the person tested, are
  371  confidential, and may not be disclosed without the consent of
  372  the person tested. Such information held by a public entity is
  373  exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I
  374  of the State Constitution.
  375         Section 4. Subsection (1) of section 948.014, Florida
  376  Statutes, is amended to read:
  377         948.014 Requirement to submit to drawing of blood or other
  378  biological specimens.—
  379         (1) As a condition of probation, community control, or any
  380  other court-ordered community supervision, the court shall order
  381  offenders order persons convicted of offenses specified in s.
  382  943.325 to submit to the drawing of the blood or other
  383  biological specimens when required under s. 943.325 as
  384  prescribed in that section as a condition of the probation,
  385  community control, or other court-ordered community supervision.
  386         Section 5. This act shall take effect July 1, 2009.

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