California

Recent / Pending Legislation

• SB 1099 (2024, enacted) – would require the state to, among other things, publicly reveal who is using California’s newborn bloodspots and why.
• SB 1250 (2024, died) – amending the Genetic Information Privacy Act to require the state government to follow the same ruels as consumer genetic testing companies and get consent before using or sharing your genetic data.

Enhanced Budget Items

• 2024 – AG Bonta’s Sponsored Bill to Solve More Crime Through Forensics Services Signed into Law https://oag.ca.gov/news/press-releases/attorney-general-bonta’s-sponsored-bill-solve-more-crime-through-forensics

Arrestees: Yes. Adults only — Pen. Code § 296(a)(2) reaches any adult arrested for or charged with a felony.

Qualifying Crimes: Any felony, including attempted felonies. Booking Station Rapid Ready.

Time of Collection: Taken at booking, or as soon afterward as administratively practicable (296.1 (a) (1) (A)). If not done then, then court will order to give within 5 days.

Expungement: Available where the petitioner can establish one of four statutory grounds under Pen. Code § 299(b) — no accusatory pleading filed or charges dismissed; reversal with dismissal; factual innocence; or acquittal.

Statutes / Case Law

• Pen. Code §§ 295–300.3 (DNA and Forensic Identification Database and Data Bank Act of 1998, expanded by Proposition 69 (2004) (The DNA Fingerprint, Unsolved Crime and Innocence Protection Act).
• Cal. Penal Code § 295.
• People v. Roberts, 2021 WL 3700319 (Cal. App. 3 Dist. 2021) (arrestee may request expungement of DNA records if no accusatory pleading was filed within applicable period allowed by law, if all qualifying charges are dismissed or arrestee is found not guilty or factually innocent).
• Challenges to collection from convicted offenders
  • People v. King (2000) 82 Cal.App.4th 1363 — early Fourth Amendment/privacy challenge to compelled DNA collection; the court applied a reasonableness-balancing test and upheld it. This became the template later courts followed.
  • Alfaro v. Terhune (2002) 98 Cal.App.4th 492 — eight death-row women challenged the 1998 Act on Fourth Amendment, privacy, and ex post facto grounds; the Court of Appeal rejected all claims, following King.
  • People v. Travis (2006) 139 Cal.App.4th 1271 — challenged the Prop. 69 version of § 296 on Fourth Amendment, equal protection, overbreadth/due process, and ex post facto theories; all rejected.
• Challenges to collection from arrestees
  • Haskell v. Harris (9th Cir. 2014) 745 F.3d 1269 (en banc) — the ACLU of Northern California’s facial Fourth Amendment challenge to Prop. 69 arrestee collection. The en banc court affirmed denial of a preliminary injunction, holding the statute facially valid after King — while noting California’s law is broader than Maryland’s (no mandatory expungement, no pre-analysis judicial probable-cause finding).
  • People v. Buza (2018) 4 Cal.5th 658 — the landmark California Supreme Court ruling. Buza refused to swab at booking after an arson arrest and was convicted of the misdemeanor refusal offense. The Court upheld the DNA Act under both the Fourth Amendment and the California Constitution as applied to a person validly arrested on probable cause for a serious felony, but pointedly limited its holding to those facts and did not decide the validity of collection from arrestees who are never charged or convicted.
  • Haskell v. Brown (N.D. Cal. 2018) 317 F.Supp.3d 1095 — holding that, after Maryland v. King, California’s law requiring DNA collection from all felony arrestees is constitutional, and affirming denial of a preliminary injunction).
• “Cold hit” / John Doe DNA warrants
  • People v. Robinson (2010) 47 Cal.4th 1104 — California Supreme Court (5–2) held that a “John Doe” arrest warrant identifying the suspect solely by a 13-locus DNA profile satisfies the particularity requirement and tolls the statute of limitations, validating prosecutions built on later database cold hits. Justice Moreno dissented, calling the unnamed warrant “a clever artifice” to evade the limitations period.
• Automatic Expungement
  • Council for Genetics and Society v. AG Bonta (A172930)

Convicted Offenders: Yes.

Qualifying Crime: for all felonies and certain misdemeanors. For misdemeanors, the requirement is narrow: it applies only to a person required to register under Penal Code § 290 (sex offenses) or § 457.1 (arson) because of the commission or attempted commission of a qualifying felony or misdemeanor offense. A plain misdemeanor conviction that doesn’t trigger one of those registration requirements does not, by itself, require a DNA sample.

Time of Collection: Where no sample was collected at arrest, it is taken as soon as administratively practicable — immediately at intake (296.1 (a) (2) (A)).

Expungement: Yes – the petitioner must show that the underlying conviction was reversed and the case dismissed, petition the court, and serve copies of the request on the DNA Laboratory and the prosecuting attorney. On receipt of the court order, the Department of Justice must destroy the sample and expunge the profile — unless the Department determines the person remains subject to the Act because of a past qualifying offense of record, or a separate arrest, conviction, or juvenile adjudication that independently obligates a specimen.

Statutes / Case Law

• Cal. Penal Code § 295
• Cal. Penal Code § 296
• Cal. Penal Code § 299

Legislative History

• Before 1998, California’s DNA database was governed by former Pen. Code § 290.2, originally enacted by Stats. 1989, Ch. 1304, § 1.5. It was amended twice—in 1993 (Stats. 1993, Ch. 457) and 1994 (Stats. 1994, 1st Ex. Sess., Ch. 42)—and again in 1996 (Stats. 1996, Ch. 917) to adjust the collection timing. As confirmed in People v. King, 82 Cal.App.4th 1363 (2000), § 290.2 was repealed in 1998 and replaced by the current chapter.
• Stats. 1998, Ch. 696, Sec. 2 — Added Chapter 6 (§§ 295–300.3) in its entirety to Part 1 of the Penal Code, creating the “DNA and Forensic Identification Database and Data Bank Act of 1998.” Effective January 1, 1999. Every section from § 295 through § 300.3 was originally added by this act.
• AB 2814 (2000, enacted) – Relating to convicted offenders (qualifying crimes/offenders), expungement, and public records requests of DNA specimens.
• SB 1818 (2000, enacted) – Missing Persons DNA Database. Creates a missing persons DNA database index in California.
• Proposition 69 — November 2, 2004 “DNA Fingerprint, Unsolved Crime and Innocence Protection Act” — The most sweeping amendment to the chapter. It was a voter initiative, not a legislative bill. It broadly expanded the collection mandate to include all felony arrestees (phased in through 2009) and made extensive changes throughout the chapter.
• Stats. 2006, Ch. 170 — AB 2850 (Spitzer) — Signed August 28, 2006. Amended §§ 296.1, 297, and 298.1. Changed laboratory accreditation requirements, authorized DOJ and designated public law enforcement crime labs to upload to DNA databanks, and expanded the list of personnel authorized to collect samples.
• Stats. 2007, Ch. 579 — SB 172 — Effective October 13, 2007. Amended § 296.2 as part of a comprehensive sex offender law reorganization that renumbered and restructured Pen. Code § 290 and related provisions. The amendment to § 296.2 was incidental to that broader reorganization.
• Stats. 2009, Ch. 88 — AB 176 — Effective January 1, 2010. Amended § 298.1 (procedures and penalties for refusal to provide specimens).
• Stats. 2011, Ch. 15 — AB 109 (Criminal Justice Realignment) — Chaptered April 4, 2011. Made an initial amendment to §§ 298.2 and 299.5 as part of the sweeping 2011 realignment.
• Stats. 2011, Ch. 39 — AB 117 — Effective June 30, 2011; operative October 1, 2011. Superseded Ch. 15’s amendments to §§ 298.2 and 299.5 with the final realignment text. Note that both §§ 298.2 and 299.5 still carry the Prop. 69 amendment as well.
• Stats. 2012, Ch. 43 — SB 1023 — Effective June 27, 2012. Amended § 296.1 (collection from specified out-of-state offenders and related provisions). This section also still carries the Prop. 69 amendment note.
• Stats. 2015, Ch. 487 — AB 1492 (Gatto) — Signed October 4, 2015. The most significant post-Prop. 69 legislative amendment. Amended operative § 298 (Sec. 2) and added a delayed-operative new version of § 298 (Sec. 3); similarly amended operative § 299 (Sec. 4) and added a delayed-operative new version of § 299 (Sec. 5). These changes addressed procedures for forensic DNA sample collection and expungement.
• Stats. 2020, Ch. 92 — AB 1869 — Effective September 18, 2020; operative July 1, 2021. Repealed § 295 (Sec. 29) and re-added it in substantially revised form (Sec. 30), including the formal naming of the DOJ DNA lab as the “Jan Bashinski DNA Laboratory” and restructuring the fee and reporting provisions.

• It appears Rapid DNA is being used by law enforcement agencies for local databasing purposes and for the analysis of crime scene samples.
• Physical Evidence Bulletin – Use of Rapid DNA Systems (2025) – Bureau of Forensic Sciences, Cal DOJ:
  • Rapid DNA / CODIS upload ban.
  • Zero active agreements with local law enforcement to use Rapid DNA.
  • Will not give copy of state CODIS to local law enforcement.
• Contra Costa County Sheriff’s Office (2019) plans to spend roughly $100,000 to buy Rapid DNA.
• How the Santa Barbara Sheriff’s Office is using Rapid DNA technology.

No law or program identified.

• The problem of LODNA in California has received coverage over the years.
• A 2011 CA DOJ audit found 1,049,057 felons had not provided a required sample (Penal Code mandate); estimates now run 1.7–2 million missed samples — the largest gap in the country. No statewide follow-up audit or recollection program since; Fresno PD ran a local LODNA project on FY2021 SAKI funds. CA OAG DNA backlog.
• Some counties have taken their approach to collection, including Sacramento under the Project D3.
• AB 3118 (2018, enacted) required a one-time audit of all untested sexual assault kits in CA, with results to be reported to Cal DOJ by July 1, 2019. DOJ had to report the results to the Legislature by July 1, 2020.
• SB 464 (2023, enacted) required a second audit for all untested sexual assault kits and that every law enforcement agency and lab create a SAFE-T database record by July 1, 2026. Medical facilities and non-law enforcement entities must report data to Cal DOJ by July 1, 2026. DOJ must report the results to the Legislature by July 1, 2027. Victims may request that their kit not be tested. The bill also directs that suspect kits must be included in the audit scope (but not necessarily in the SAFE-T database, since that is for victims).
• Both of these bills are sexual assault-focused, not general LODNA. Cal. Penal Code § 295, specifically § 295(h) mandates quarterly reporting to the public showing samples received, analyzed, and uploaded to CODIS. But, it is not specifically to LODNA.

• No program or law identified.
• 2009 – Cal DOJ BFS pilot program called CHOP – Cold Hit Outcome Project; a possible previous pilot.