AGO Opinion 97053
DNA Detection of Sexual and Violent Perpetrators Act
DATE: October 8, 1997
SUBJECT: DNA Detection of Sexual and Violent Perpetrators Act
REQUESTED BY: Harold W. Clarke, Director, Nebraska Department of
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.
Linda L. Willard
Assistant Attorney General