October 14, 2019
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       Florida Senate - 2009                      CS for CS for SB 2276
       
       
       
       By the Committees on Judiciary; and Governmental Oversight and
       Accountability; and Senator Oelrich
       
       
       
       590-05184-09                                          20092276c2
    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;
    8         requiring reports; providing for a statewide automated
    9         personal identification system capable of classifying,
   10         matching, and storing analyses of DNA and other data;
   11         providing for access; specifying duties of the
   12         department; providing that the database may contain
   13         DNA for certain types of samples; specifying offenders
   14         from whom DNA is to be collected; authorizing the use
   15         of reasonable force to collect samples; providing an
   16         exemption from liability for use of such force;
   17         providing for collection of samples from specified
   18         offenders from out of state; requiring the department
   19         to provide sample containers; providing requirements
   20         for information to be submitted with each sample;
   21         providing for court orders for samples; authorizing
   22         prosecutors to seek court orders in certain
   23         circumstances; requiring that a convicted person pay
   24         the actual costs of collecting the approved DNA
   25         samples unless declared indigent; providing that
   26         certain failures to strictly comply with statute or
   27         protocol are not grounds for challenging the validity
   28         of the collection or the use of a DNA sample in court,
   29         and evidence based upon or derived from the collected
   30         DNA sample may not be excluded by a court; providing
   31         that the detention, arrest, or conviction of a person
   32         based upon a database match or database information
   33         may not be invalidated if it is later determined that
   34         the sample was obtained or placed in the database by
   35         mistake; providing for retention of samples; providing
   36         for analysis of samples; requiring that DNA analysis
   37         and the comparison of analytic results be released
   38         only to criminal justice agencies; continuing a
   39         public-records exemption for such information;
   40         prohibiting the willful refusal to provide a DNA
   41         sample; providing penalties; prohibiting specified
   42         offenses relating to disclosing DNA records, using
   43         records without authorization, or tampering with DNA
   44         samples or analysis results; providing penalties;
   45         providing circumstances that require removal of the
   46         DNA analysis and DNA sample from the statewide DNA
   47         database of a person whose DNA analysis and sample was
   48         included in the database as a result of a conviction
   49         for a qualifying offense; providing circumstances that
   50         require removal of the DNA analysis and DNA sample
   51         from the statewide DNA database of a person whose DNA
   52         analysis and sample was included in the database as a
   53         result of an arrest; authorizing the Department of Law
   54         Enforcement to adopt rules related to the
   55         implementation of the removal of DNA analyses and
   56         samples from the statewide DNA database; amending ss.
   57         760.40 and 948.014, F.S.; conforming provisions to
   58         changes made by the act; providing an effective date.
   59  
   60  Be It Enacted by the Legislature of the State of Florida:
   61  
   62         Section 1. This act may be cited as the “DNA Database Act.”
   63         Section 2. Section 943.325, Florida Statutes, is amended to
   64  read:
   65         (Substantial rewording of section. See
   66         s. 943.325, F.S., for present text)
   67         943.325DNA database.—
   68         (1)LEGISLATIVE INTENT.—
   69         (a)The Legislature finds that DNA databases are important
   70  tools in criminal investigations, in the exclusion of
   71  individuals who are the subject of criminal investigations or
   72  prosecutions and in detecting recidivist acts. It is the policy
   73  of this state to assist federal, state, and local criminal
   74  justice and law enforcement agencies in the identification and
   75  detection of individuals in criminal investigations and the
   76  identification and location of missing and unidentified persons.
   77  Therefore, it is in the best interests of the citizens of this
   78  state to establish a statewide DNA database containing DNA
   79  samples submitted by persons convicted of or arrested for felony
   80  offenses and convicted of certain misdemeanor offenses.
   81  Additionally, the statewide DNA database shall include DNA
   82  records and samples necessary for the identification of missing
   83  persons and unidentified human remains, including DNA samples
   84  voluntarily contributed by relatives of missing persons.
   85         (b)The Legislature also finds that upon establishment of
   86  the Florida DNA database a match between casework evidence DNA
   87  samples from a criminal investigation and DNA samples from a
   88  state or federal DNA database of certain offenders may be used
   89  to find probable cause for the issuance of a warrant to obtain
   90  the DNA sample from an offender.
   91         (2)DEFINITIONS.—As used in this section, the term:
   92         (a)“Arrested” means apprehended or physically taken into
   93  custody, resulting in the submission of arrest fingerprints to
   94  the department, pursuant to s. 943.051.
   95         (b)“CODIS” means the Federal Bureau of Investigation’s
   96  Combined DNA Index System that allows the storage and exchange
   97  of DNA records submitted by federal, state, and local forensic
   98  DNA laboratories.
   99         (c)“Convicted” means a finding of guilt by a court of
  100  competent jurisdiction, or entry of a plea of nolo contendere or
  101  guilty, or, in the case of a juvenile, the finding of
  102  delinquency, regardless of adjudication.
  103         (d)“DNA” means deoxyribonucleic acid. DNA is located in
  104  the cells and provides an individual’s personal genetic
  105  blueprint. DNA encodes genetic information that is the basis of
  106  human heredity and forensic identification.
  107         (e)“DNA record” means all information associated with the
  108  collection and analysis of a person’s DNA sample, including the
  109  distinguishing characteristics collectively referred to as a DNA
  110  profile.
  111         (f)“DNA sample” means a buccal or other approved
  112  biological specimen capable of undergoing DNA analysis.
  113         (g)“Qualifying offender” means any person, including
  114  juveniles and adults, who is:
  115         1.a.Committed to a county jail;
  116         b.Committed to or under the supervision of the Department
  117  of Corrections, including persons incarcerated in a private
  118  correctional institution operated under contract pursuant to s.
  119  944.105;
  120         c.Committed to or under the supervision of the Department
  121  of Juvenile Justice;
  122         d.Transferred to this state under the Interstate Compact
  123  on Juveniles, part XIII of chapter 985; or
  124         e.Accepted under Article IV of the Interstate Corrections
  125  Compact, part III of chapter 941; and who is:
  126         2.a.Convicted of any felony offense or attempted felony
  127  offense in this state or of a similar offense in another
  128  jurisdiction;
  129         b.Convicted of a misdemeanor violation of s. 784.048, s.
  130  810.14, s. 847.011, s. 847.013, s. 847.0135, or s. 877.26, or an
  131  offense that was found, pursuant to s. 874.04, to have been
  132  committed for the purpose of benefiting, promoting, or
  133  furthering the interests of a criminal gang as defined in s.
  134  874.03; or
  135         c.Arrested for any felony offense or attempted felony
  136  offense in this state.
  137         (3)COLLECTION OF SAMPLES.—
  138         (a)Each qualifying offender shall submit a DNA sample at
  139  the time he or she is booked into a jail, correctional facility,
  140  or juvenile facility.
  141         (b)DNA samples collected under paragraph (a) from persons
  142  arrested for any felony offense or attempted felony offense in
  143  this state are subject to sufficient funding appropriations
  144  passed by the Legislature and approved by the Governor according
  145  to the following schedule:
  146         1.Beginning January 1, 2011, all felonies defined by
  147  chapters 782, 784, 794, and 800.
  148         2.Beginning January 1, 2013, all felonies defined by
  149  chapters 810 and 812.
  150         3.Beginning January 1, 2015, all felonies defined by
  151  chapters 787 and 790.
  152         4.Beginning January 1, 2017, all felonies defined by
  153  chapter 893.
  154         5.Beginning January 1, 2019, all remaining felony
  155  offenses.
  156  
  157  The department may reject DNA samples submitted pursuant to this
  158  subsection if submitted before the funding of any phase or if
  159  received before the department issues an official notification
  160  to the submitting agency that the department is sufficiently
  161  prepared to receive the samples.
  162         (c)On or before February 1, 2010, and by February 1 of
  163  each even-numbered year thereafter through 2018, the department
  164  shall submit a report to the Legislature listing the funding,
  165  infrastructure, facility, and personnel requirements necessary
  166  to operate the DNA database and DNA evidentiary analysis for the
  167  expansion phase scheduled for the following year.
  168         (4)STATEWIDE DNA DATABASE.—The department, through the
  169  statewide criminal laboratory analysis system shall establish,
  170  implement, and maintain a statewide automated personal
  171  identification system capable of, but not limited to,
  172  classifying, matching, and storing analyses of DNA and other
  173  biological molecules and related data. The department shall be
  174  the administrator of the statewide DNA database. All accredited
  175  local government crime laboratories within the state shall have
  176  access through CODIS to the statewide DNA database in accordance
  177  with the rules and agreements established by the department.
  178         (5)DUTIES.—The department shall:
  179         (a)Receive, process, and store DNA and the data derived
  180  therefrom furnished pursuant to this section.
  181         (b)Collect, process, maintain, and disseminate information
  182  and records as provided by this section.
  183         (c)Strive to maintain and disseminate only accurate and
  184  complete records.
  185         (d)Participate in the national DNA database program
  186  administered by the Federal Bureau of Investigation.
  187         (e)Provide for liaison with the Federal Bureau of
  188  Investigation and other criminal justice agencies relating to
  189  the state’s participation in the CODIS program and the national
  190  DNA index system.
  191         (f)Adopt rules specifying the proper procedure, including
  192  requisite identification information, for state and local law
  193  enforcement and correctional agencies to collect and submit DNA
  194  samples pursuant to this section.
  195         (6)SAMPLES.—The statewide DNA database may contain DNA
  196  data obtained from the following types of biological samples:
  197         (a)Crime scene samples.
  198         (b)Samples obtained from qualifying offenders required by
  199  this section to provide a biological sample for DNA analysis and
  200  inclusion in the statewide DNA database.
  201         (c)Samples lawfully obtained during the course of a
  202  criminal investigation.
  203         (d)Samples from deceased victims or suspects that were
  204  lawfully obtained during the course of a criminal investigation.
  205         (e)Samples from unidentified human remains.
  206         (f)Samples from persons reported missing.
  207         (g)Samples voluntarily contributed by relatives of missing
  208  persons.
  209         (h)Other samples approved by the department.
  210         (7)COLLECTION OF DNA SAMPLES FROM OFFENDERS.—
  211         (a)Any qualifying offender, who is:
  212         1.Arrested in this state;
  213         2.Incarcerated in this state; or
  214         3.On probation, community control, parole, conditional
  215  release, control release, or any other type of court-ordered
  216  supervision in this state,
  217  
  218  shall be required to submit a DNA sample to a department
  219  designated facility.
  220         (b)Arrested qualifying offenders must submit a DNA sample
  221  at the time they are booked into a jail, correctional facility,
  222  or juvenile facility.
  223         (c)Incarcerated persons and those in the custody of the
  224  Department of Juvenile Justice must submit required DNA samples
  225  not less than 45 days before their presumptive date of release
  226  from such incarceration or commitment.
  227         (d)Upon the conviction of any qualifying offender which
  228  results in the commitment of the offender to a county jail,
  229  correctional facility, or juvenile facility, the entity
  230  responsible for the jail or facility shall ensure that a DNA
  231  sample is promptly secured and transmitted to the department.
  232  Personnel at the jail, correctional facility, or juvenile
  233  facility shall collect the DNA samples as part of the regular
  234  processing of qualifying offenders committed to the jail or
  235  facility.
  236         (e)If a qualifying offender is not incarcerated following
  237  conviction, that offender may not be released from the custody
  238  of the court at the time of sentencing or released pursuant to a
  239  bond or surety until the DNA sample required by this section has
  240  been taken by the sheriff or his or her designee. The sheriff
  241  shall secure, process, and transmit the DNA sample to the
  242  department in a timely manner.
  243         (8)REASONABLE FORCE.—Duly authorized law enforcement and
  244  corrections personnel may employ reasonable force in cases where
  245  a qualifying offender refuses to provide a DNA sample required
  246  under this section, and no such employee shall be civilly or
  247  criminally liable for the use of such reasonable force.
  248         (9)OUT-OF-STATE OFFENDERS.—Any qualifying offender who is:
  249         (a)Transferred to this state under the Interstate Compact
  250  on Juveniles, part XIII of chapter 985, for a felony offense or
  251  attempted felony offense; or
  252         (b)Accepted under Article IV of the Interstate Corrections
  253  Compact, part III of chapter 941, for a felony offense or
  254  attempted felony offense,
  255  
  256  shall provide a DNA sample pursuant to this section to the
  257  entity responsible for supervision of the offender, who shall
  258  ensure that the DNA sample is collected in a manner approved by
  259  the department and promptly secured and transmitted to the
  260  department.
  261         (10)COLLECTION; LIABILITY.—
  262         (a)The collection of DNA samples may be performed by any
  263  person using a collection kit approved by the department as
  264  directed in the kit or pursuant to other procedures approved by
  265  or acceptable to the department.
  266         (b)Any person who collects or assists in the collection of
  267  a DNA sample is not civilly or criminally liable if a collection
  268  kit provided or approved by the department is used and the
  269  collection is done as directed in the kit, in a manner approved
  270  by the department, or is performed in an otherwise reasonable
  271  manner.
  272         (11)SAMPLES.—The department will provide the DNA sample
  273  collection kits, labels, or other appropriate containers and
  274  instructions for the collection of the DNA samples. After
  275  collection, the DNA samples shall be forwarded to the department
  276  for analysis to determine genetic markers and characteristics
  277  for the purpose of individual identification of the person
  278  submitting the sample.
  279         (a)At minimum, the following information must be included
  280  with each submission:
  281         1.The qualifying offender’s last name, first name, date of
  282  birth, race, gender, and State Identification (SID) number if
  283  known.
  284         2.The statute number of each offense charged.
  285         3.The collecting agency’s name and address.
  286         4.The name and telephone number of the person performing
  287  the collection of the DNA sample or witnessing the collection of
  288  the sample.
  289         (b)If a DNA sample submitted to the department under this
  290  section cannot be used by the department in the manner and for
  291  the purposes required by this section, the department may
  292  require that another DNA sample be obtained.
  293         (12)COURT ORDERS; COSTS.—The sentencing court shall
  294  include in the judgment order for a qualifying offender a
  295  provision requiring collection of a DNA sample from the
  296  defendant in a manner consistent with this section.
  297         (a)Unless a convicted person has been declared indigent by
  298  the court, the convicted person shall pay the actual costs of
  299  collecting the approved biological specimens required under this
  300  section.
  301         (b)If the order of a sentencing court fails to order a
  302  qualifying offender to submit a DNA sample as mandated by this
  303  section, the prosecutor may seek an amended order from the
  304  sentencing court requiring submission of a DNA sample in
  305  compliance with this section. In the alternative, the
  306  department, the Department of Corrections, a law enforcement
  307  agency, or a prosecutor may apply to the appropriate circuit
  308  court with jurisdiction for an order authorizing the seizure of
  309  the qualifying offender for the purpose of securing the required
  310  DNA sample.
  311         1.The court shall issue the order upon a showing of
  312  probable cause.
  313         2.Following issuance of the order, the DNA sample shall be
  314  collected in a reasonable manner and the qualifying offender
  315  shall be released unless there is cause to justify retaining the
  316  offender in custody.
  317         (c)Failure by a law enforcement agency or other entity
  318  involved in collection of DNA samples under this section to
  319  strictly comply with this section or to abide by a statewide
  320  protocol for collecting DNA samples is not grounds for
  321  challenging the validity of the collection or the use of a DNA
  322  sample in court and evidence based upon or derived from the
  323  collected DNA sample may not be excluded by a court.
  324         (d)The detention, arrest, or conviction of a person based
  325  upon a database match or database information may not be
  326  invalidated if it is later determined that the sample was
  327  obtained or placed in the database by mistake.
  328         (e)All DNA samples submitted to the department for any
  329  reason shall be retained in the statewide DNA database and may
  330  be used for all lawful purposes as provided in this section.
  331         (13)ANALYSIS OF DNA SAMPLES.—
  332         (a)The department shall specify procedures for the
  333  collection, submission, identification, analysis, storage, and
  334  disposition of the DNA samples and DNA records collected under
  335  this section. These procedures shall also ensure compliance with
  336  national quality assurance standards so that the DNA records may
  337  be accepted into the national DNA database.
  338         (b)The analyses of DNA samples collected under this
  339  section shall be used only for law enforcement identification
  340  purposes or to assist in the recovery or identification of human
  341  remains or missing persons and may not be used for
  342  identification of any medical or genetic condition.
  343         (c)When completed, the results of DNA analysis shall be
  344  entered into the statewide DNA database maintained and
  345  administered by the department for such purpose, as provided in
  346  this section.
  347         (14)RESULTS.—The results of a DNA analysis and the
  348  comparison of analytic results shall be released only to
  349  criminal justice agencies as defined in s. 943.045(10), at the
  350  request of the agency. Otherwise, such information is
  351  confidential and exempt from the provisions of s. 119.07(1) and
  352  s. 24(a), Art. I of the State Constitution.
  353         (15)OFFENSES AND PENALTIES.—
  354         (a)Any person subject to the requirements of this section
  355  who willfully refuses to provide a DNA sample commits a
  356  misdemeanor of the second degree, punishable as provided in s.
  357  775.082 or s. 775.083.
  358         (b)Any person who:
  359         1.Knowingly or intentionally discloses a DNA record,
  360  including the results of a DNA analysis, to a person or agency
  361  other than one authorized to have access to such records under
  362  this section;
  363         2.Knowingly or intentionally uses or receives DNA records,
  364  including the results of DNA analysis, for purposes other than
  365  those authorized under this section; or
  366         3.Knowingly or intentionally tampers or attempts to tamper
  367  with any DNA sample, the result of any analysis of a DNA sample,
  368  or a DNA sample collection container,
  369  
  370  commits a felony of the third degree, punishable as provided in
  371  s. 775.082, s. 775.083, or s. 775.084.
  372         (16)PROCEDURES FOR REMOVAL.—Unless the department
  373  determines that a person is otherwise required by law to submit
  374  a DNA sample for inclusion in the statewide DNA database, the
  375  department shall, upon receipt and completion of such
  376  verification of the information noted below as may be required,
  377  promptly remove from the statewide DNA database the DNA analysis
  378  and any DNA biological samples that may have been retained of a
  379  person included therein:
  380         (a)On the basis of a conviction for a qualifying offense
  381  specified in subparagraph (2)(g)2., if the department receives,
  382  from the person seeking removal of DNA information from the
  383  statewide DNA database, for each qualifying offense, a certified
  384  copy of a final court order establishing that such conviction
  385  has been overturned on direct appeal or set aside in a
  386  postconviction proceeding; or
  387         (b)On the basis of an arrest, if the department receives
  388  from the person seeking removal of DNA information from the
  389  statewide DNA database, for each charge against the person on
  390  the basis of which the analysis was or could have been included
  391  in the statewide DNA database, a certified copy of the No
  392  Information or Nolle Prosequi filed by the state attorney, or
  393  final court order or other official documentation establishing
  394  that such charge has been dismissed or has resulted in an
  395  acquittal or that no charge was filed within the applicable time
  396  period.
  397  
  398  For purposes of this section, a court order is not final if time
  399  remains for an appeal or application for discretionary review
  400  with respect to the order, or if a case has been remanded for
  401  retrial or other proceedings and has not been resolved after
  402  remand, or time remains for appeal or discretionary review of
  403  the remanded case or any other such proceedings that have not
  404  concluded and rendered the case resolved with finality.
  405         (17)RULES.—The department shall, by rule, establish the
  406  procedure by which a person seeking removal of his or her DNA
  407  analysis and biological sample from the statewide DNA database
  408  shall submit the certified information required in subsection
  409  (16) to the department.
  410         Section 3. Paragraph (a) of subsection (2) of section
  411  760.40, Florida Statutes, is amended to read:
  412         760.40 Genetic testing; informed consent; confidentiality;
  413  penalties; notice of use of results.—
  414         (2)(a) Except for purposes of criminal prosecution, except
  415  for purposes of determining paternity as provided in s. 409.256
  416  or s. 742.12(1), and except for purposes of acquiring specimens
  417  from persons convicted of certain offenses or as otherwise
  418  provided in s. 943.325, DNA analysis may be performed only with
  419  the informed consent of the person to be tested, and the results
  420  of such DNA analysis, whether held by a public or private
  421  entity, are the exclusive property of the person tested, are
  422  confidential, and may not be disclosed without the consent of
  423  the person tested. Such information held by a public entity is
  424  exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I
  425  of the State Constitution.
  426         Section 4. Subsection (1) of section 948.014, Florida
  427  Statutes, is amended to read:
  428         948.014 Requirement to submit to drawing of blood or other
  429  biological specimens.—
  430         (1) As a condition of probation, community control, or any
  431  other court-ordered community supervision, the court shall order
  432  offenders order persons convicted of offenses specified in s.
  433  943.325 to submit to the drawing of the blood or other
  434  biological specimens when required under s. 943.325 as
  435  prescribed in that section as a condition of the probation,
  436  community control, or other court-ordered community supervision.
  437         Section 5. This act shall take effect July 1, 2009.

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