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AGO Opinion 97053

DNA Detection of Sexual and Violent Perpetrators Act
Opinion 97053

DATE: October 8, 1997

SUBJECT: DNA Detection of Sexual and Violent Perpetrators Act

REQUESTED BY: Harold W. Clarke, Director, Nebraska Department of

Correctional Services

WRITTEN BY: Don Stenberg, Attorney General

Linda L. Willard, Assistant Attorney General




You have asked several questions regarding the administration

of LB 278 passed during the 1997 Legislative Session which is known

as the DNA Detection of Sexual and Violent Perpetrators Act (Act).

The Act requires that a person who is convicted of a felony sex

offense or other specified offense have a blood or tissue sample

drawn for DNA identification purposes. It also establishes a state

DNA data base for DNA records and a state DNA sample bank as a

repository for DNA samples.




Your first questions is where the sample is to be collected.

The Act requires that if a person is already confined when

convicted, the sample is to be drawn immediately after sentencing.

Your inquiry is whether the Department of Correctional Services is

required to draw the samples or should the Act be interpreted to

mean that the samples should be drawn in county jails where most

inmates are incarcerated when they are convicted and sentenced to

prison. LB 278 provides at § 6:




(1) A person who is convicted of a felony sex offense or

other specified offense on or after the effective date of

this Act shall have a DNA sample drawn: (a) upon intake

to a prison, jail, or other detention facility or

institution to which such person is sentenced. If the

person is already confined at the time of sentencing, the

person shall have a DNA sample drawn immediately after

the sentencing. Such DNA samples shall be drawn at the

place of incarceration or confinement. Such persons

shall not be released unless and until a DNA sample has

been drawn; . . .




The general rules governing statutory construction and

interpretation provide that in the absence of anything indicating

to the contrary, statutory language is to be given its plain and

ordinary meaning. Proctor v. Minnesota Mutual Fire & Casualty, 248

Neb. 289, 534 N.W.2d 326 (1995); George Rose & Son Siding & Grading

Co. v. Nebraska Dept. of Revenue, 248 Neb. 92, 532 N.W.2d 18

(1995). In this instance, the legislative bill provides that if

the person is confined at the time of sentencing, the DNA sample is

to be drawn immediately after sentencing at the place of

incarceration or confinement. Those individuals not confined at

the time of sentencing are to have a DNA sample drawn upon intake

to the prison, jail, or other detention facility or institution to

which they have been sentenced. Therefore, it is our determination

that if an individual is confined in a county jail or other

detention facility at the time the sentence is imposed, that

individual shall have a DNA sample drawn immediately after

sentencing at that detention facility. Those individuals not

confined at the time of sentencing shall have a DNA sample drawn

upon intake to the prison, jail or other detention facility or

institution to which they have been sentenced.




Your second question relates to the use of physical force to

require an inmate to submit a DNA sample. You inquire whether the

Department of Correctional Services or the county jail facility may

involuntarily take a specimen from an inmate using physical force.

It is our determination that the legislature has not authorized the

use of physical force in obtaining these DNA samples.




LB 278 simply states that offenders convicted of the listed

crimes "shall" have DNA samples drawn, and "shall not be released

unless and until a DNA sample has been drawn." There is no

specific provision illustrating how this is to be accomplished.




The legislative history of the bill addresses the question of

use of force even more directly. The statute was patterned after

the Pennsylvania statute 35 PS § 7651 (LB 278, Judiciary Committee

hearing, February 7, 1997, p. 114) which includes a specific

provision allowing the use of physical force. As originally

introduced in committee, LB 278 included a similar provision

permitting the use of reasonable force by law enforcement and

corrections personnel to obtain the DNA samples. This section was

removed after public hearing by the judiciary committee. Senator

Brashear summarized the committee amendments, including the

striking of the provision allowing physical force:




And finally, the committee amendments remove a section

that permitted law enforcement and corrections personnel

to use reasonable force when drawing DNA samples from the

subject, so that the permission to use reasonable force

no longer exists. If the subject refuses and will not

permit, then the corrections and law enforcement

personnel will have to proceed otherwise.




LB 278, Floor Debate, April 2, 1997, p. 3113.




It is our determination that LB 278 does not authorize the use

of physical force to obtain DNA samples. Not only do the words of

the Act not authorize the use of physical force, but the

legislative history reinforces the intent of the legislature not to

authorize physical force in obtaining the DNA samples.




Your next question relates to the meaning of "maximum term" in

§ 6 of the Act. Section 6(1)(a) provides that a person convicted

of a felony sex act or other specified offense on or after the

effective date of the Act shall have a DNA sample drawn: upon

intake to a prison jail or other detention facility. "Such person

shall not be released until or unless a DNA sample has been drawn."

Paragraph (6)(2) of § 6(2) of the Act provides:




A person who has been convicted of a specified offense

before the effective date of this Act and who is still

serving a term of confinement for such offense on the

effective date of this Act shall not be released prior to

the expiration of his or her maximum term of confinement

unless and until a DNA sample has been drawn.




Your question specifically goes to whether an inmate who

refuses to give a specimen must serve his maximum term less his

good time without parole, or must serve his maximum sentence

without any good time awarded and without parole. You further ask

what should be done with inmates who have a "flat" sentence, e.g.

where the minimum and maximum terms are the same.




There is no definition of "maximum term" within LB 278.

However, Neb. Rev. Stat. § 83-170 (1994) defines several terms

related to correctional services. Subsection 8 defines maximum

term "to mean the maximum sentence provided by law or the maximum

sentence imposed by a court, whichever is shorter."




In determining the meaning of the statute, the applicable rule

is when the legislature enacts a law affecting an area which is

already the subject of other statutes, it is presumed that it did

so with full knowledge of the preexisting legislation and decisions

of the Supreme Court construing and applying that legislation.

White v. State, 248 Neb. 977, 540 N.W.2d 354 (1995); see also

Dalition v. Langemeier, 246 Neb. 993, 524 N.W.2d 336 (1994); In re

Hilbers Property Freehold Transfer, 211 Neb. 268, 318 N.W.2d 265

(1982). It must be presumed that the legislature was already aware

of the definition that they had given to maximum term in those

statutes relating to the Department of Correctional Services. If

the legislature had intended that an inmate have the advantage of

good time statutes even though a DNA sample had not been provided,

it is presumed that they would have defined the maximum term

specifically for the Act or indicated that the inmate was to serve

the maximum sentence less good time received. Therefore, the

definition of maximum term provided by the legislature in those

statutes relating to the Department of Correctional Services,

specifically, Neb. Rev. Stat. § 83-270(8) must be applied to the

definition of maximum term as it occurs in LB 278. Thus, an inmate

who refuses to give the required DNA sample must serve his or her

maximum sentence as imposed by the court or the maximum sentence

allowed by law, whichever is shorter, without any good time and

without any parole. An inmate to whom the Act applies who has a

"flat" sentence (one where the maximum and minimum terms are equal)

would also be required to serve the maximum sentence as defined by

statute unless a DNA sample is provided.




Your fourth and fifth questions deal with the issue of whether

an inmate convicted of an applicable crime who has not supplied a

DNA sample may be released on travel orders, furloughs, work

detail, or any other work activity outside the perimeter of a

secure institution, or be placed on minimum custody status to work

outside the perimeter of a secure institution under intermittent

supervision of staff members.




The statutes specifically state that a person who is convicted

of one of the specified offenses on or after the effective date of

the Act "shall not be released unless and until a DNA sample has

been drawn," and one who has been convicted of a specified offense

"before the effective date of this Act and who is still serving a

term of confinement for such offense on the effective date of this

Act shall not be released prior to the expiration of his or her

maximum term of confinement unless or until a DNA sample has been

drawn." LB 278, § 3(9) defines "release" as "any release, parole,

furlough, work release, prerelease, or release in any other manner

from a prison, jail or any other detention facility or

institution." Therefore, an inmate who refuses to submit a DNA

specimen may not be released for any of the programs you ask about

or any similar program.




You have also asked whether a court order for transportation

of an inmate to a court proceeding would qualify as a release for

the purposes of the statute. The court order distinguishes the

situation. The Act does not include transportation of inmates to

court proceedings within the definition of "release" nor is this

activity analogous to any of the listed examples included within

the definition. Unlike parole, furlough, work release or

prerelease, transportation of an inmate to court proceedings in

compliance with a court order is more in the nature of a mandatory

rather than a discretionary "release." Therefore, because a

transfer to court as a result of a court order is the compliance

with the mandatory directive of the court and is not a "release"

within the statutory definition, the court order should be honored

regardless of whether the DNA specimen has been obtained.




DON STENBERG

Attorney General




Linda L. Willard

Assistant Attorney General