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DNA TEST - PROP 69 G-145 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: DNA DATABANK COLLECTION NO: G-145 FILE: DNA TEST — PROP 69 EFFECTIVE DATE: 12-17-07 REVISED: AUTHORITY: Sheriff M. Mims APPROVED BY: Captain M. Weldon REFERENCE: Penal Code Sections 290, 295, 296, 296.1, 298.1 and 457.1; DOJ Information Bulletin 04-BFS-03 dated 03-15-05 [Proposition 69— DNA Fingerprint, Unsolved Crime & Innocence Protection Act, effective November 3, 2004]; Boulineau v. Donald (11t" Circuit Court of Appeals No. 03-16527); and California Code of Regulations, Title 15, Section 1059. PURPOSE: The purpose of this policy is to establish procedures and guidelines for the collection of deoxyribonucleic acid (DNA) and forensic identification data bank samples in accordance with the DNA Fingerprint, Unsolved Crime and Innocence Protection Act. POLICY: It is the policy of the Fresno County Sheriffs Department Detention Bureau to obtain buccal swab samples, right thumbprints, and a full palm print impression of each hand and blood specimens or other biological samples required from qualified offenders pursuant to Section 296 of the California Penal Code. It is the policy of the Fresno County Sheriffs Department to ensure that the requisite samples, specimens, and print impressions must be collected promptly or as soon as administratively practicable after arrest(e.g., during booking), conviction or adjudication,and in any event prior to release on bail or any physical release from confinement or custody. PROCEDURES: I. PERSONS REQUIRING DNA TESTING The following persons shall provide buccal swab samples (from the inner cheek cells of the mouth), right thumbprints, and a full palm print impression from each hand, and any blood specimens or other biological samples required pursuant to PC 296: A. Any adult arrested on or after November 3, 2004 for murder (PC187), Page 1 of 10 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: DNA DATABANK COLLECTION NO: G-145 FILE: DNA TEST — PROP 69 voluntary manslaughter (PC192(a)), a felony sex offense (specified in PC 290), or attempt to do any of those crimes. 1. The arrestee provision is not retroactive 2. Criminal history and/or prior felony convictions do not matter 3. Collection shall be made immediately following arrest, during booking or "as soon as practicable" 4. Effective January 1, 2009, all adults arrested for any felony offense shall require DNA sampling B. Registered PC 290 Sex Offenders and PC 457.1 Arson Offenders 1. The requirement is fully retroactive 2. The underlying crime could be a felony or misdemeanor offense 3. Collection should normally take place during annual registration,or within ten (10) days of notification C. Anyone in custody who is currently convicted of any felony offense (or pleads guilty, no contest, or found guilty by reason of insanity). Or anyone currently convicted of a misdemeanor/infraction offense, who has a prior felony conviction. 1. Collection should be done immediately following conviction (i.e., plea or verdict). Prior to final disposition or sentencing in the case, the court shall inquire and verify that the required specimens have been obtained. 2. Applies whether the person is in-custody or out-of-custody(as long as the individual is under any government or criminal justice system control or supervision with respect to that offense). Persons out-of- custody must appear for collection within five (5) days of notice. D. Anyone who is housed in a mental health facility or sex offender treatment program after referral to such facility/program by a court after being charged with any felony offense. 1. This includes persons found incompetent to stand trial under Penal Page 2 of 10 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: DNA DATABANK COLLECTION NO: G-145 FILE: DNA TEST — PROP 69 Code Section 1368, those committed to a state hospital upon a finding of not guilty by reason of insanity, and those classified as mentally disordered sex offenders. E. Anyone as part of a plea agreement or by order of the Court. F. Any person on probation, parole or any other supervised release after conviction for any felony offense committed prior to November 3, 2004. Or any person currently on probation (or any other supervised release) for any offense with a prior felony conviction. II. IDENTIFICATION OF QUALIFYING STATUS A. Inmates who have been arrested on a qualifying offense (e.g., PC 187, PC 192(a), or any felony sex offense specified in PC 290) shall have their DNA collected at the time of booking, or as soon as practicable. The Identification Technician (ID Tech) assigned to booking shall be responsible to- 1. Confirm the subject's identity 2. Collect the DNA samples 3. Update the inmate's DNA field on the Person Summary (Person/ Demographics/DNA/Attributes/New; Attribute = DNA; Value = ON FILE). B. If the sample was obtained from the arresting agency before the arrestee was brought to the jail, that information must be relayed to the Jail Identification Bureau staff to avoid duplication of collection. 1. The arresting agency shall make a notation in the "Identification Bureau Use Only" portion of the arrest tag (J-2 form), indicating the collection has been obtained (or was not collected because DOJ already had a sample on file). 2. The ID Tech assigned to booking shall be responsible to update the inmate's DNA field on the Person Summary (Person/ Demographics/DNA/Attributes/New; Attribute = DNA; Value = ON FILE). C. The Population Management Unit will be responsible to review the Page 3 of 10 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: DNA DATABANK COLLECTION NO: G-145 FILE: DNA TEST — PROP 69 criminal history of all inmates who are to remain in custody. The Population Management Officer shall determine if the inmate has any past felony convictions and check to see if there is a notation that DNA has already been collected (or whether anew sample is needed). The Population Management Officer shall be responsible to- 1. Update the inmate's DNA field on the Person Summary as necessary (Person/Demographics/DNA/Attributes/New;Attribute = DNA; Value = [as applicable]). VALUE TRANSLATION DNA sample needs to be collected (e.g., PC 290, Needs Collection 457.1 registrant; felony convictions; or otherwise qualifies.) A blood sample is required (if the inmate's previous Needs Collection -Blood DNA collection failed to generate a full DNA profile, the DOJ requires a blood sample) On File DNA sample has already been collected by the Sheriff's Department On File/Other Is listed on the Criminal History that DNA sample has already been collected (i.e., by another agency) 2. If the inmate has a prior felony conviction, update the ALERTS screen. a. From the Person Summary screen, click on ALERTS. Create a new Alert by clicking on the "New" (white sheet) icon on the top of the screen. b. Click on the arrow next to the the ACTIVE field and select Y. c. ALERT TYPE = Prior Felony Conviction d. SOURCE = Internal. Select Prison Management. e. DATE FROM = click inside the field and press ENTER. The field will automatically default to the current date. f. Save the information by clicking on the "Save" (floppy disk) icon on the top of the screen. D. Records staff shall review all court paperwork for possible DNA Page 4 of 10 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: DNA DATABANK COLLECTION NO: G-145 FILE: DNA TEST — PROP 69 collection. It shall be the Records Supervisor's responsibility to ensure the following- 1. If a court order is received requiring DNA collection, update the inmate's DNA field on the Person Summary (Person/ Demographics/DNA/Attributes/New; Attribute = DNA; Value = NEEDS COLLECTION) and forward a copy of the court order to the Jail Identification Bureau. 2. If the inmate has been convicted and the charge is a felony, the inmate automatically qualifies for DNA collection requirements. a. Update the inmate's DNA field on the Person Summary as necessary (Person/Demographics/DNA/Attributes/New; Attribute = DNA; Value = NEEDS COLLECTION). b. NOTE: If the current charge has been reduced to a misdemeanor, it is imperative that the level be modified to reflect the change so that an inmate does not unnecessarily have their DNA tested. [Booking/Booking Management/ Charges. Select the charge to be modified; click on "Edit"(the red pencil icon); change the CLASS field as appropriate.] Follow the procedures under II(E)(3) as follows: 3. If the inmate has been convicted and the charge is a misdemeanor or infraction: a. Retrieve the inmate's Person Summary screen b. Review the DNA field for any prior entries. If there is an entry, no action is required. If the field is blank, then- C. Review the ALERTS field for notification of a "prior felony conviction". If the inmate has a prior felony conviction, modify the DNA field to "Needs Collection". If the inmate does not have a prior felony conviction listed, no action is necessary. 4. If paperwork is received releasing an inmate from custody (i.e., sentenced and released): a. If the charge is a felony, review the inmate's Person Summary for prior DNA collection. If DNA has not been previously taken, notify the Jail Identification Bureau that the inmate needs to be reviewed for priority processing. Page 5 of 10 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: DNA DATABANK COLLECTION NO: G-145 FILE: DNA TEST — PROP 69 b. If the charge is a misdemeanor or infraction, review the inmate's Person Summary for prior DNA collection and for Prior Felony Conviction Alerts. If the inmate has not had DNA previously collected and has a prior felony, the inmate needs to have a DNA sample collected prior to release. Notify the Jail Identification Bureau. C. The delay in the inmate's release should not exceed two (2) hours. III. CONFIRMATION OF SUBJECT'S IDENTITY A. A list of the names of all offenders needing to comply with DNA collection requirements shall be printed in the Jail Identification Bureau's Office each morning (Reports/Reports/Fresno Reports/Jail Records/DNA Report [fill in applicable date parameters; Bank Account Number = 1]). B. The Jail Identification Bureau shall have the exclusive responsibility for verifying an offender's identity and status as a person qualifying for DNA collection prior to collection. The collection kits include a card requiring collecting personnel to certify the identity of the person providing the DNA sample, as well as the fact that the person's offense, conviction, adjudication, or other status qualifies him/her for DNA collection. C. The inmate's state and county custody documentation and criminal history shall be reviewed to ensure that DNA samples and print impressions are not already in DOJ's possession. 1. A sample shall not be collected if the CII criminal history indicates that a collection has already occurred. 2. The DOJ's DNA Data Bank Program staff may be contacted if questions arise concerning an inmate's collection status or if the criminal history is questionable or unavailable. a. Telephone (510) 620-3300 (Monday through Friday,8.00 a.m. — 5.00 p.m.). To be used for seven (7) or fewer queries. b. Email - pc296.pc296(cD_do0.ca.gov (24-hour turn-around) C. FAX — (510) 231-8744 (24-hour turn-around) D. The Jail Identification Bureau shall be responsible for obtaining the Page 6 of 10 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: DNA DATABANK COLLECTION NO: G-145 FILE: DNA TEST — PROP 69 collection of samples. 1. In order to avoid redundant DNA collection from the same subject, the collection kits shall be promptly submitted to DOJ. (The "do not collect" flag will be entered on the inmate's CII criminal history within one week of receipt of the collection kit at the Richmond DNA Lab.) 2. Update the inmate's DNA field on the Person Summary (Person/ Demographics/DNA/Attributes/New; Attribute = DNA; Value = ON FILE). IV. COLLECTION MECHANICS A. Samples, specimens, and print impressions must be collected using DOJ-approved collection kits, and in accordance with DOJ's instructions. B. The preferred, but not required, method of palm print submissions is electronic transmissions via a Live Scan device. C. The withdrawal of blood, when requested by DOJ, must be done in a medically-approved manner by trained and certified health care providers. D. The DOJ DNA Laboratory will require collection of blood specimens where buccal swab is insufficient. E. Reasonable force may be used to collect DNA samples and specimens from a qualifying offender who refuses to cooperate. There is no need for a court order. V. REFUSAL TO PROVIDE A SAMPLE A. If an inmate refuses to submit a DNA sample, an officer shall fill out a "Penal Code Section 298.1 Admonishment Form". 1. The officer shall read the admonishment section to the inmate, obtain the inmate's signature, sign the form and obtain the Facility Sergeant's signature. 2. If the inmate refuses to sign the form, two officers shall sign the form as witnesses to the inmate's refusal. 3. The Facility Sergeant shall notify the Watch Commander. Page 7 of 10 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: DNA DATABANK COLLECTION NO: G-145 FILE: DNA TEST — PROP 69 B. The Watch Commander will order that a deputy complete an arrest report and submit an additional charge of PC 298.1 (a misdemeanor). C. Pursuant to Penal Code Section 298.1, authorized law enforcement, custodial, or corrections personnel may employ reasonable force to collect blood specimens, saliva samples, or thumb or palm print impressions from individuals who are required to provide such samples, specimens or impressions pursuant to Penal Code Section 296 and who refuse following written or oral request. 1. Reasonable force shall not be used without the prior authorization of the Watch Commander. 2. The "use of reasonable force" shall be defined as the force that an objective, trained and competent correctional employee,faced with similar facts and circumstances, would consider necessary and reasonable to gain compliance. 3. The use of reasonable force shall be preceded by efforts to secure voluntary compliance with Section 298.1 of the Penal Code. 4. There is no need for a court order. 5. All DNA collections involving a cell extraction and/or use of force shall be videotaped via handheld video camera, including audio. The entire event shall be videotaped and the tape shall be forwarded and stored in the Detention Bureau's Administrative Office. D. The Pro-Straint Chair should be utilized to restrain the inmate while the samples are obtained. The Pro-Straint Chair placement shall be accomplished in adherence to policy (D-236/Pro-Straint Restraining Chair). E. For safety reasons, a DNA standard kit (blood) should be used for a forced DNA sample. F. Incident reports shall be written, as applicable. G. Within 10 days of the use of reasonable force, the Watch Commander Page 8 of 10 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: DNA DATABANK COLLECTION NO: G-145 FILE: DNA TEST — PROP 69 shall send a Data Collection report to the Corrections Standards Authority. The report shall document the inmate's refusal to voluntarily submit the requisite specimen, sample or impression; the use of reasonable force to obtain the specimen, sample or impression, if any; the type of force used; the efforts undertaken to obtain voluntary compliance; and whether medical attention was needed by the prisoner or other person as a result of reasonable force being used. 1. A refusal, for reporting purposes, may be passive or aggressive and may or may not lead to the use of force. 2. An initial refusal in which voluntary compliance is subsequently attained is not considered a refusal for reporting purposes. H. The Watch Commander shall ensure that a designated employee update the inmate's DNA field on the Person Summary (Person/ Demographics/DNA/Attributes/New;Attribute = DNA; Value=ON FILE). VI. SUBMISSION OF SPECIMENS AND PRINT IMPRESSIONS The Identification Technology Unit shall be responsible to properly package, label and mail the collected samples. (The Buccal DNA Collection kits do not need to be refrigerated.) The Buccal DNA Collection Kit will be mailed to: State of California Department of Justice DNA Data Bank Program 1001 W. Cutting Blvd., Suite 110 Richmond, CA 94804-2028 VI I. EXPUNGEMENT PROCEDURES A. A person who has provided a DNA sample under Proposition 69 may request that his/her blood or buccal specimen be destroyed and corresponding profile expunged from searchable databases if any of the following circumstances exist (and the person has no other qualifying offense of record)- 1. A DNA sample was collected upon the person's arrest, but a. no charges were filed within the applicable statute of Page 9 of 10 FRESNO COUNTY SHERIFF'S OFFICE JAIL DIVISION POLICIES AND PROCEDURES TITLE: DNA DATABANK COLLECTION NO: G-145 FILE: DNA TEST — PROP 69 limitations b. the person was found not guilty or otherwise acquitted of the charges c. the conviction was subsequently reversed and the case dismissed d. a court subsequently found the person to be factually innocent of that crime 2. A DNA sample for a suspect was profiled and entered into the Database, but the person is no longer considered a suspect by the investigating agency. B. Any person wishing to expunge their DNA shall be referred to the District Attorney's Office. Page 10 of 10