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1. Collection from Convicted/Adjudicated Felony Offenders: Who qualifies for DNA collection following conviction or adjudication?

   a) Any person (adult or juvenile) who is newly convicted/adjudicated of a felony offense, or who is newly convicted/adjudicated of a misdemeanor or infraction offense but has a prior felony (California or equivalent out-of-state crime) of record; (b) Any person (adult or juvenile) currently in custody or on probation, parole, or any other supervised release after conviction for any felony offense committed prior to November 3, 2004; (c) Any person (adult or juvenile) currently on probation or any other supervised release for any offense with a prior felony (California or equivalent out-of-state crime) of record.

   Note: Because sample collection is an administrative consequence of conviction/adjudication or placement in designated institutions, it is the responsibility of law enforcement or the courts to ensure that samples are taken from qualifying offenders in conjunction with conviction or as soon as possible thereafter. For collection to occur for any of the above, the offender must be under the jurisdiction or control of the court, government or criminal justice system (e.g., in custody, on probation, on parole, or on other release or supervision).

2. Collection from Registering Sex and Arson Offenders: Can we collect a DNA sample from PC 290 sex registrants who became registrants as a result of a misdemeanor conviction?

   Yes. Both sex registrants and arson registrants whose underlying offense was a misdemeanor qualify for DNA collection. Collection should take place at their registration update or at an appointed time thereafter, or at any time within 10 days of notification.

3. Collection from Arrestees: Which arrestees are subject to DNA collection?

   Until January 1, 2009, only adults arrested on or after November 3, 2004 for murder, voluntary manslaughter, a felony PC 290 sex offense, or an attempt to commit one of those crimes are subject to DNA collection under Proposition 69. Beginning in 2009, adults arrested for any felony offense are subject to DNA collection. Note: Prior felony convictions do not trigger DNA collection from any arrestees. The arrestee provision is not retroactive.

4. Can law enforcement agencies that make arrests obtain a sample from qualifying arrestees before they are brought to our jails for booking?

   Yes. Proposition 69 provides that collection take place "as soon as administratively practicable after arrest." Each city and/or county may decide how that will be implemented in collaboration with their local departments. The main issue will be the ability of the agency to access the rap sheet or some other resource to determine if samples already have been collected (through a county-wide database, for instance) and to identify the individual, preferably via prints and CAL-ID.

5. Is a person who is the subject of a "direct file" homicide complaint obligated to provide an "arrestee" DNA sample?

   California Penal Code section 834 defines an "arrest" as "taking a person into custody, in a case and in the manner authorized by law." Presumably a homicide defendant would be taken into custody at some point before trial, at which time an arrestee DNA sample must be provided.

1. As an investigator, can I collect a DNA sample from someone I consider a suspect in a crime, but whom I have not yet arrested?

   No, unless it is legally obtained without regard to Proposition 69. Proposition 69 does not authorize collection of DNA samples from suspects in criminal investigations. Law enforcement agencies may, however, submit to their primary lab services provider for DNA testing and entry into the State Database a known sample of a suspect's blood, saliva, or other biological substance that has been obtained without regard to Proposition 69 (e.g., by consent or warrant). (PC 297(b)(1).) Once a suspect sample has been accepted for inclusion in the State's DNA Data Bank Program, the submitting agency must notify the Department of Justice within two years whether the person remains a suspect in that particular investigation.

1. How do arresting agencies or custodial facilities know if a person who qualifies for DNA collection has already provided a sample?

   The agency should (1) check the state rap sheet for a collection "flag"; (2) check any local or county criminal history records for a DNA collection notation. The agency also can contact the DOJ DNA Lab at (510) 620-3300 during business hours [for collection confirmation press "1-1" in the automated answering system] to inquire as to the collection status of an offender.

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1. Do adults placed on deferred entry of judgment qualify for DNA collection?

   No. The pleas or admissions that are entered as part of deferred entry of judgment ("DEJ") agreements do not trigger DNA collection requirements for juveniles or adults. Those pleas are provisional in nature, and will be dismissed if the conditions of the DEJ term are satisfied. Therefore, the pleas (or admissions) are not "convictions" for purposes of DNA collection. Of course, if the offender fails to satisfy the conditions of the DEJ term, the plea will become a conviction of record and DNA collection can occur at that point.

2. What is the specific definition of a mental health treatment program as it applies to Proposition 69?

   The "mental health facility" referenced in PC 296(a)(3) refers to any mental health facility to which the offender is referred by the court and subsequently housed before conviction, i.e., charges have been filed, but the defendant is declared incompetent to stand trial, enters a "not guilty by reason of insanity" plea, etc, or the mental health facility in which a person is housed pursuant to Penal Code section 2684 et seq. in lieu of a state prison commitment. Most substance abuse treatment programs would likely not be included, unless those offenders qualified for DNA collection by virtue of being convicted of a felony offense or a misdemeanor with a felony prior.

3. Will adult and juvenile offenders who qualify for DNA testing be required to return to court if they do not complete such testing by sentencing or adjudication?

   Collection should occur before sentencing or disposition. However, there is no requirement in Prop. 69 that the offender be returned to court if the DNA sample is not collected before sentencing or disposition. In that case (e.g., for everyone currently on probation, in custody, or on parole who has not given a sample), DNA collection should be done by the agency supervising or housing the offender. Note, however, that a judge must "inquire and verify" that DNA collection has occurred prior to sentencing. (PC 296(f).)

4. Do county facilities collect DNA samples from federal prisoners who are being housed there pretrial (i.e., not yet convicted?

   Generally, persons under federal jurisdiction who are being housed at your facilities pending trial have not yet been convicted, and so are not subject to Prop. 69 DNA collection while in your custody. Following conviction in federal court, those people will be subject to DNA collection if they qualify under Prop. 69 (e.g., the person is incarcerated in a federal institution, AND committed a qualifying offense in California, OR was a resident of California at the time of the qualifying offense, OR the person has a California felony conviction of record, OR the person will be released in California). If the person qualifies, the U.S. Marshals or other federal authorities may collect the DNA.

5. Do county facilities collect DNA samples from out-of-state prisoners serving sentences locally?

   Inmates who were convicted outside California but are incarcerated in your facilities are potentially subject to DNA collection. Your facilities should do the collection if the offender has a California felony conviction of record, or an out-of-state conviction (past or present) that is the equivalent of a California felony. You can and should make DNA collection a condition of accepting the inmate into your facility under interstate compact or other reciprocal agreement.

6. Will probation be responsible for collection for cases being supervised in another state via ISC (interstate compact?

   Yes. Probation should make arrangements with the out-of-state authorities supervising the offender regarding collection of DNA from qualifying California offenders. It is preferred that collection take place prior to a person's transport to another state or jurisdiction.

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1. Are juveniles subject to DNA collection if they have not been made a ward of the court?

   Juveniles who have been adjudicated (i.e., petition sustained) of a felony qualify for DNA collection whether they are made a ward of the court or not.

2. Are juveniles placed on informal probation and juveniles participating in deferred entry of judgment programs subject to DNA collection requirements?

   No. You can not collect DNA from juveniles who are on deferred entry of judgment or informal probation, because the admission of culpability was "provisional" and will be deleted if the DEJ conditions are met, i.e., there will be no adjudication of record.

3. Are juveniles convicted of a misdemeanor sex offense required to provide DNA samples?

   Juveniles who are required to register as sex offenders under PC 290 qualify for DNA collection, whether the underlying offense was a felony or misdemeanor. If the juvenile was adjudicated of a misdemeanor offense that carries with it optional 290 registration, but the court decided not to impose the registration requirement, that juvenile does not have to provide DNA samples (unless he has a prior felony of record).

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1. Does DOJ have a timetable for placing flags in C.I.I. when samples are received by DOJ?

   Yes. It is anticipated that all rap sheets not already annotated will be updated with the appropriate "do not collect" flag within one week of receipt of the collection kit at the Richmond DNA Lab.

2. Can DOJ release a comprehensive list of offenders requiring samples?

   No. That would likely violate the use and disclosure restrictions built into the DNA Database Act. DOJ may, however, be able to compare electronically-submitted lists of potential qualifying offenders with the list of offenders whose DNA profiles are currently in the Database, and assist the submitting agency in identifying offenders who still owe a DNA sample.

1. Do palm prints need to be taken again if previously supplied?

   No.

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1. Will the law enforcement agency that collected DNA samples using the current blood/saliva kit be required to go back and also collect buccal swabs from those offenders?

   No. Absent unusual circumstances, the blood/saliva samples will be used for Data Bank purposes, and no further sample will be required.

2. Can non-medical personnel administer the buccal swab procedure?

   Yes. By statute, buccal swab samples "may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection." (Pen. Code, § 298(b)(3).) The Department of Justice will provide training.

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1. What is the law regarding refusals when the offender refuses to provide the required sample?

   State law has not changed with regard to refusals. It is still a misdemeanor to refuse to provide DNA samples and print impressions as required by law. (PC 298.1(a).) In addition, state law continues to authorize the use of reasonable force to obtain DNA samples from those who refuse collection, once legally-mandated regulations are in place. (PC 298.1(b), (c).) No court order is necessary. DOJ recommends that blood collection be used for refusers for safety reasons.

2. Will the California Board of Corrections be providing a "Standardized Use of Force Report" specific to DNA collection, or other similar policy?

   The Board of Corrections has issued use of force regulations.

3. Will the state provide blood kits for refusals?

   Yes, the current blood kits will be used until new blood kits can be issued with the revised submission form. New submission forms will be provided for the existing kits in the interim.

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1. Who ultimately is responsible for implementation (not just collection) within the County?

   By law, the Department of Justice administers the Data Bank Program, and is ultimately responsible for implementing Proposition 69. The law does not specify a "lead" implementation entity within counties. Counties should organize themselves by coordinating collection responsibilities between law enforcement, prosecutorial, and correctional agencies that may have contact with a person who qualifies for DNA collection. Municipal and county agencies also should coordinate the communication of the fact of collection between each other so as not to duplicate efforts.

2. Are there any licensing or training requirements to collect the buccal swabs?

   There is no licensing requirement in the statute and DOJ does not plan to start one. However, there are training requirements. By law, buccal swab samples "may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection." (Pen. Code, § 298(b)(3).)

   Prior to implementing buccal collection in the county or agency (or delivery of kits by DOJ), agencies will be required to attend training sponsored or approved by DOJ in collections. In addition to the direct training already provided to pilot counties (Alameda, Los Angeles, Orange, San Diego), DOJ has run statewide regional training sessions in January and February 2005 to provide training to collection trainers and collectors, an overview of the law to answer legal questions and assistance to administrators establishing the program.

   Please contact DOJ for information on any future training sessions (PC296.PC296@doj.ca.gov). DOJ also has recruited the assistance of local and state regional crime lab directors to provide continued training in local jurisdictions after the larger regional training programs planned. In addition, DOJ is preparing a training package and has some initial PowerPoint presentations and bulletins for agencies.

   DOJ is in the process of developing self-paced computer training or a video (or both) that could be distributed by inexpensive DVD with each lot of kits or otherwise made available to law enforcement (videos would also be available on request by an agency). In all cases, DOJ- approved training must be performed prior to shipment of the new kits and training records kept by an agency to document the training of the individuals doing collections using these easy-to-use BODE collectors.

3. Will there be any penalty for waiting until the buccal collection kits become available to begin collections, and when will those kits be available from DOJ?

   There is no penalty for not collecting samples, but law enforcement and correctional agencies are obligated to collect DNA samples from qualified persons "as soon as administratively practicable." DOJ will continue to reimburse agencies for use of existing kits (at $30/kit) until the agency has received the DOJ-provided buccal kit after DOJ-approved training. Priority should first be given to those who are being released from parole/probation and second from confinement to probation or parole. Buccal collection kits should be available to all qualifying agencies (please refer to prior discussion on planned regional training meetings).

4. How can my law enforcement agency receive training in use of the buccal swab collectors?

   Contact the Department of Justice DNA Lab at PC296.PC296@doj.ca.gov to make training arrangements.

5. How do I obtain DNA collection kits for use by my agency?

   Contact the Department of Justice DNA Lab at PC296.PC296@doj.ca.gov.

6. What is the process and procedure for sending collected DNA samples to the DOJ lab?

   Package the collection envelopes in groups and mail, or mail the collection envelopes individually. Agencies may also deliver completed collection kits to the Richmond Lab in person.

7. My agency is concerned with how to find the staff to do the blood draws if required to do it now?

   DOJ will continue to reimburse agencies for use of existing kits (at $30/kit) until the agency has received the DOJ-provided buccal kit after training approved by DOJ. Phlebotomists should be retained on staff or by contract even after implementing the buccal collection, because a 5% failure rate is within expectation for this technology and it is preferred that blood draws be used for repeat collections or refusers to ensure adequate sample collection.

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1. How are Prop. 69 funds allocated?

   For funds received in 2005 and 2006, 30% stays in the county. For funds received in 2007, 50% stays in the county. For funds received in 2008 and after, 75% stays in the county. Generally, within the county, the money is to be used to reimburse local law enforcement for DNA collection expenses and verification of offender/arrestee identity & qualifying status expenses, and to reimburse local and state crime laboratories for evidence analysis and storage costs. There are no statutory requirements controlling disbursement of funds at the county level. It is up to each individual county to apportion funds within that county and to define reimbursement expenses.

2. It appears the initial split of funding between the State and Counties as well as the loan to the State fund took into consideration the need for CDC and CYA to obtain samples from current inmates and parolees under their supervision, but did not take into consideration the costs to Counties to obtain samples from the probationers currently under supervision of County Probation Departments. What steps are the Governor's office and DOJ taking to provide funding for the collection of samples from current probationers before their term of probation expires. (Staffing and livescan/palm print equipment?

   Neither CDC nor CYA were provided with funding for DNA collection under Proposition 69. Because county probation departments (and other county agencies) are statutorily designated recipients of funds that will be collected pursuant to the Initiative's funding measure, DOJ will not provide funding for collection from probationers.

3. Will state law enforcement agencies (e.g., BART Police, University of California Police) be eligible to receive money deposited into the county DNA Identification funds?

   Yes. Any law enforcement agency involved in implementing DNA Data Base laws should seek reimbursement for DNA-related expenses from the county/counties in which those expenses are incurred.

4. How are funding issues to be addressed at the local level?

   The statute provides for establishment of a fund under the control of the county, into which a percentage of criminal fines and penalties are deposited. While some of this money is transferred to the State, some is retained for reimbursement of local expenses. The statute authorizes a number of uses for the money, including DNA collection, processing, tracking, analysis, and storage. It is up to local agencies to agree on apportionment of these funds.

5. What safeguards exist to ensure that the county law enforcement and local DNA crime labs get funds?

   None, other than the statutory mandate that a certain percentage of funds collected at the county level be used "to reimburse local sheriff or other law enforcement agencies" for collection expenses. (Govt. Code, § 76104.6(b)(3).)

6. How will sample collection costs be reimbursed?

   Because the statute provides local agency funding that includes the cost of collections and because the buccal swab collection mechanism (as the primary means of collection) is specifically designed to reduce the cost of collection, DOJ will no longer reimburse local agencies for collections after implementation of buccal collection in that jurisdiction, estimated to be no later than February 2005. DOJ will continue to fund reimbursements until the existing blood/saliva kits are replaced, training has been conducted with DOJ and buccal kit collection is in place in that county or agency.

7. Will DOJ continue to reimburse for the cost of collecting a required, supplemental blood sample once buccal collections begin?

   No. Although DOJ will continue to provide blood collection kits free of cost on an "as-needed" basis, once an agency begins buccal collections DOJ will no longer reimburse for any collection costs because the county portion of the DNA fund is intended to cover these costs.