2009 California Penal Code - Section 298-298.3 :: Article 4. Collection And Forwarding Of Samples

PENAL CODE
SECTION 298-298.3

298.  (a) The Director of Corrections, or the Chief Administrative
Officer of the detention facility, jail, or other facility at which
the blood specimens, buccal swab samples, and thumb and palm print
impressions were collected shall cause these specimens, samples, and
print impressions to be forwarded promptly to the Department of
Justice. The specimens, samples, and print impressions shall be
collected by a person using a Department of Justice approved
collection kit and in accordance with the requirements and procedures
set forth in subdivision (b).
   (b) (1) The Department of Justice shall provide all blood specimen
vials, buccal swab collectors, mailing tubes, labels, and
instructions for the collection of the blood specimens, buccal swab
samples, and thumbprints. The specimens, samples, and thumbprints
shall thereafter be forwarded to the DNA Laboratory of the Department
of Justice for analysis of DNA and other forensic identification
markers.
   Additionally, the Department of Justice shall provide all full
palm print cards, mailing envelopes, and instructions for the
collection of full palm prints. The full palm prints, on a form
prescribed by the Department of Justice, shall thereafter be
forwarded to the Department of Justice for maintenance in a file for
identification purposes.
   (2) The withdrawal of blood shall be performed in a medically
approved manner. Only health care providers trained and certified to
draw blood may withdraw the blood specimens for purposes of this
section.
   (3) Buccal swab samples may be procured by law enforcement or
corrections personnel or other individuals trained to assist in
buccal swab collection.
   (4) Right thumbprints and a full palm print impression of each
hand shall be taken on forms prescribed by the Department of Justice.
The palm print forms shall be forwarded to and maintained by the
Bureau of Criminal Identification and Information of the Department
of Justice. Right thumbprints also shall be taken at the time of the
collection of samples and specimens and shall be placed on the sample
and specimen containers and forms as directed by the Department of
Justice. The samples, specimens, and forms shall be forwarded to and
maintained by the DNA Laboratory of the Department of Justice.
   (5) The law enforcement or custodial agency collecting specimens,
samples, or print impressions is responsible for confirming that the
person qualifies for entry into the Department of Justice DNA
Database and Data Bank Program prior to collecting the specimens,
samples, or print impressions pursuant to this chapter.
   (6) The DNA Laboratory of the Department of Justice is responsible
for establishing procedures for entering data bank and database
information.
   (c) (1) Persons authorized to draw blood or obtain samples or
print impressions under this chapter for the data bank or database
shall not be civilly or criminally liable either for withdrawing
blood when done in accordance with medically accepted procedures, or
for obtaining buccal swab samples by scraping inner cheek cells of
the mouth, or thumb or palm print impressions when performed in
accordance with standard professional practices.
   (2) There is no civil or criminal cause of action against any law
enforcement agency or the Department of Justice, or any employee
thereof, for a mistake in confirming a person's or sample's
qualifying status for inclusion within the database or data bank or
in placing an entry in a data bank or a database.
   (3) The failure of the Department of Justice or local law
enforcement to comply with Article 4 or any other provision of this
chapter shall not invalidate an arrest, plea, conviction, or
disposition.

298.1.  (a) On and after January 1, 1999, any person who refuses to
give any or all of the following, blood specimens, saliva samples, or
thumb or palm print impressions as required by this chapter, once he
or she has received written notice from the Department of Justice,
the Department of Corrections and Rehabilitation, any law enforcement
personnel, or officer of the court that he or she is required to
provide specimens, samples, and print impressions pursuant to this
chapter is guilty of a misdemeanor. The refusal or failure to give
any or all of the following, a blood specimen, saliva sample, or
thumb or palm print impression is punishable as a separate offense by
both a fine of five hundred dollars ($500) and imprisonment of up to
one year in a county jail, or if the person is already imprisoned in
the state prison, by sanctions for misdemeanors according to a
schedule determined by the Department of Corrections and
Rehabilitation.
   (b) (1) Notwithstanding subdivision (a), authorized law
enforcement, custodial, or corrections personnel, including peace
officers as defined in Sections 830, 830.1, subdivision (d) of
Section 830.2, Sections 830.38, 830.5, or 830.55, may employ
reasonable force to collect blood specimens, saliva samples, or thumb
or palm print impressions pursuant to this chapter from individuals
who, after written or oral request, refuse to provide those
specimens, samples, or thumb or palm print impressions.
   (2) The withdrawal of blood shall be performed in a medically
approved manner in accordance with the requirements of paragraph (2)
of subdivision (b) of Section 298.
   (3) The use of reasonable force as provided in this subdivision
shall be carried out in a manner consistent with regulations and
guidelines adopted pursuant to subdivision (c).
   (c) (1) The Department of Corrections and Rehabilitation and the
Division of Juvenile Justice shall adopt regulations governing the
use of reasonable force as provided in subdivision (b), which shall
include the following:
   (A) "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 with this chapter.
   (B) The use of reasonable force shall not be authorized without
the prior written authorization of the supervising officer on duty.
The authorization shall include information that reflects the fact
that the offender was asked to provide the requisite specimen,
sample, or impression and refused.
   (C) The use of reasonable force shall be preceded by efforts to
secure voluntary compliance with this section.
   (D) If the use of reasonable force includes a cell extraction, the
regulations shall provide that the extraction be video recorded.
   (2) The Corrections Standards Authority shall adopt guidelines
governing the use of reasonable force as provided in subdivision (b)
for local detention facilities, which shall include the following:
   (A) "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 with this chapter.
   (B) The use of reasonable force shall not be authorized without
the prior written authorization of the supervising officer on duty.
The authorization shall include information that reflects the fact
that the offender was asked to provide the requisite specimen,
sample, or impression and refused.
   (C) The use of reasonable force shall be preceded by efforts to
secure voluntary compliance with this section.
   (D) If the use of reasonable force includes a cell extraction, the
extraction shall be video recorded.
   (3) The Department of Corrections and Rehabilitation, the Division
of Juvenile Justice, and the Corrections Standards Authority shall
report to the Legislature not later than January 1, 2005, on the use
of reasonable force pursuant to this section. The report shall
include, but is not limited to, the number of refusals, the number of
incidents of the use of reasonable force under this section, the
type of force used, the efforts undertaken to obtain voluntary
compliance, if any, and whether any medical attention was needed by
the prisoner or personnel as a result of force being used.

298.2.  (a) Any person who is required to submit a specimen sample
or print impression pursuant to this chapter who engages or attempts
to engage in any of the following acts is guilty of a felony
punishable by imprisonment in the state prison for two, three, or
four years:
   (1) Knowingly facilitates the collection of a wrongfully
attributed blood specimen, buccal swab sample, or thumb or palm print
impression, with the intent that a government agent or employee be
deceived as to the origin of a DNA profile or as to any
identification information associated with a specimen, sample, or
print impression required for submission pursuant to this chapter.
   (2) Knowingly tampers with any specimen, sample, print, or the
collection container for any specimen or sample, with the intent that
any government agent or employee be deceived as to the identity of
the person to whom the specimen, sample, or print relates.

298.3.  (a) To ensure expeditious and economical processing of
offender specimens and samples for inclusion in the FBI's CODIS
System and the state's DNA Database and Data Bank Program, the
Department of Justice DNA Laboratory is authorized to contract with
other laboratories, whether public or private, including law
enforcement laboratories, that have the capability of fully analyzing
offender specimens or samples within 60 days of receipt, for the
anonymous analysis of specimens and samples for forensic
identification testing as provided in this chapter and in accordance
with the quality assurance requirement established by CODIS and
ASCLD/LAB.
   (b) Contingent upon the availability of sufficient funds in the
state's DNA Identification Fund established pursuant to Section
76104.6, the Department of Justice DNA Laboratory shall immediately
contract with other laboratories, whether public or private,
including law enforcement laboratories, for the anonymous analysis of
offender reference specimens or samples and any arrestee reference
specimens or samples collected pursuant to subdivision (a) of Section
296 for forensic identification testing as provided in subdivision
(a) of this section and in accordance with the quality assurance
requirements established by CODIS and ASCLD/LAB for any specimens or
samples that are not fully analyzed and uploaded into the CODIS
database within six months of the receipt of the reference specimens
or samples by the Department of Justice DNA Laboratory.


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