§ 679.12. — 679.12. (Amended by Stats. 2023, Ch. 131, Sec. 151.)

California § 679.12.

• Jurisdiction: California
• Code PEN: Penal Code - PEN
• Title: 17.
• Part 1.: TITLE 17. RIGHTS OF VICTIMS AND WITNESSES OF CRIME

Text

(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 that qualifies that person for inclusion within the state’s 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, 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 person’s 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 victim’s own and is not from an individual who voluntarily provided a reference sample for exclusion, such as DNA transferred from an assailant.

Legislative History

Amended by Stats. 2023, Ch. 131, Sec. 151. (AB 1754) Effective January 1, 2024.