Opinion
Nos. CR 96-0161628, CR 03-0570541
February 8, 2011
MEMORANDUM OF DECISION RE STATE'S MOTIONS FOR PERMISSION TO USE REASONABLE PHYSICAL FORCE TO OBTAIN DNA SAMPLE
Section 54-102g(a) provides in relevant part: "Any person who has been convicted of . . . a felony, and has been sentenced on that conviction to the custody of the [c]ommissioner of [c]orrection shall, prior to release from custody and at such time as the commissioner may specify, submit to the taking of a blood or other biological sample for DNA . . . analysis to determine identification characteristics specific to the person." After the sample is collected, the identification characteristics resulting from the DNA analysis are stored and maintained in the DNA data bank to aid future investigations and to protect the public. See General Statutes §§ 54-102g(f) and 54-102j.
Pursuant to General Statutes § 54-102g(a), on March 17, 2010, the department of correction requested that the defendants submit to DNA collection. The defendants refused to provide the requested samples. Due to their refusal, each defendant was charged with a new offense pursuant to § 54-102g(g), which provides that "[a]ny person who refuses to submit to the taking of a blood or biological sample pursuant to this section shall be guilty of a class A misdemeanor." On May 19, 2010, the state filed a motion under each of the above captioned docket numbers requesting this court to authorize the use of reasonable physical force to obtain a DNA sample from the defendants. Memorandums in support of the motions were filed by the state on July 20, 2010. The defendants, through counsel, filed memorandums in opposition to the state's motions on August 12, 2010. The court held hearings on July 7, August 26 and October 14 of 2010. Defendant Banks filed a pro se supplemental memorandum in opposition to the state's motion on October 13, 2010.
Effective October 1, 2010, the penalty was increased to a class D felony.
On January 10, 2011, defendant Drakes was convicted by a jury under the above statute and sentenced by the trial court to a term of one year incarceration to be served consecutively to his current sentence. Defendant Banks has yet to be tried for his refusal.
Facts
Defendant Banks was convicted in 1997 under docket number CR 96-0161628 of two counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), two counts of kidnapping in the first degree in violation of § 53a-92 and one count of criminal possession of a pistol or revolver in violation of § 53a-217c. At the same time, Banks was convicted under docket number CR 96-0094045 of two counts of robbery in the first degree in violation of § 53a-134(a)(4), two counts of kidnapping in the first degree in violation of § 53a-92 and one count of criminal possession of a pistol or revolver in violation of § 53a-217c. Defendant Drakes was convicted in 2005 of murder in violation of § 53a-54a and criminal possession of a firearm in violation of § 53a-217. The defendants are currently serving sentences pursuant to their convictions and are in the custody of the department of correction. They are subject to the conditions of § 54-102g because the offenses for which they currently stand convicted are felonies.
Discussion
I. Jurisdiction of the Trial Court
This court must first address the issue of whether it has jurisdiction to consider the state's motions. In accordance with their convictions, Banks was sentenced in 1997 and Drakes was sentenced in 2005. Generally, "the jurisdiction of the sentencing court terminates when the sentence is put into effect and that court may no longer take any action affecting the sentence unless it has been expressly authorized to act." (Emphasis in original; internal quotation marks omitted.) State v. Waterman, 264 Conn. 484, 492 (2003).
In Waterman, the defendant claimed that the trial court did not have jurisdiction to make the factual finding necessary to trigger the sexual offender registration requirement set forth in Megan's Law; General Statutes § 54-250 et seq.; which he argued was a punitive sanction, because he had already begun to serve his sentence. Id., 488-89. The Connecticut Supreme Court held that the sex offender registration requirement of Megan's Law is a regulatory condition, separate from the criminal judgment, and thus did not divest the trial court of jurisdiction even after the sentence is imposed. Id., 489. The court noted that the registration requirement is ministerial, not punitive, in nature and that the finding made by the trial court and the court's advisement that the defendant must comply with the statute did not modify the criminal sentence. Id., 498.
Similar to the court's advisement and enforcement of the registration requirement under Megan's Law in Waterman, a court order authorizing the collection of DNA by the use of reasonable physical force would not affect the defendants' sentences in any way. Put another way, in deciding the state's motions this court does not have to revisit the defendants' sentences; thus, the sentences are not subject to modification or correction. See id.
Concerning whether § 54-102g is regulatory or punitive in nature, this court is guided by the test set forth in State v. Kelly, 256 Conn. 23, 92-93 (2001), and followed in Waterman. In Kelly, the court expressly decided that Megan's Law is a nonpunitive statutory scheme. In reaching that conclusion, the court utilized a two-part test: "First . . . whether [the legislature] . . . indicated either expressly or impliedly a preference for one label or the other [i.e. a criminal or civil statute]. Second, [despite the legislature's intention to create a civil statute] . . . whether the statutory scheme [is] so punitive either in purpose or effect as to negate that intention." (Internal quotation marks omitted.) State v. Kelly, supra, 256 Conn. 92; see also State v. Waterman, supra, 264 Conn. 492-93.
After a review of the statutory scheme that includes § 54-102g, it does not appear that the legislature intended DNA collection to be punitive. The text of § 54-102g itself, in subsection (f), provides the overarching, nonpunitive goal of maintaining a DNA data bank to assist in future criminal investigations. Further, the statutory scheme not only sets forth specific procedures to be followed in the collection and storage of DNA, it also provides protections against the unauthorized dissemination of information from the DNA databank. General Statutes § 54-102h (procedures for collection of biological samples); § 54-102i (procedures for conducting DNA analysis); § 54-102j (dissemination of information in DNA data bank); § 54-102k (penalties for unauthorized dissemination or use of DNA data bank information); § 54-102l (expungement of DNA data bank records upon exoneration); § 54-102m (creation and management of DNA Data Bank Oversight Panel to ensure the integrity and privacy of the data bank).
As to whether the DNA collection statute is punitive in effect, this court recognizes that subsection (g) of § 54-102g deems the refusal to provide a DNA sample a crime. It is noteworthy, however, that Megan's Law contains, and has contained since its enactment in 1999, a similar provision that subjects violators of the registration requirement to a class D felony. General Statutes §§ 54-251(e), 54-252(d), 54-253(e), 54-254(b). The inclusion of such penalty did not deter the Kelly court in finding that the registration requirement is regulatory; see State v. Kelly, supra, 256 Conn. 93-94; and § 54-102g provides no greater penalty on those offenders subject to its conditions who refuse to submit to a collection of their DNA. Thus, this court is not persuaded that subsection (g), standing alone, renders the § 54-102g punitive in effect.
As noted above, the encompassing statutory scheme of § 54-102g, which prohibits the unauthorized use and dissemination of DNA information and provides privacy protections for the identifying characteristics included in the data bank, supports a determination that the statute is not punitive in purpose. Furthermore, the ultimate objective of DNA collection is to create a database to assist in solving crimes; thus, inmate submissions of DNA and inclusion in the data bank may actually lead to the exoneration of those who are innocent. Such an effect is most certainly not punitive.
Consequently, the above discussed aspects of § 54-102g, and the statutory scheme of which it is a part, demonstrate that the statute is not so punitive as to negate the legislature's regulatory intent. There is also an inadequate basis to distinguish § 54-102g from similar provisions in Megan's Law to justify a different conclusion than that reached by the Supreme Court in Kelly. Accordingly, this court concludes that § 54-102g is regulatory, not punitive, in nature. See also Hughes v. Warden of Cheshire, Superior Court, judicial district of New Haven, Docket No. CV 01 0447384 (May 13, 2002, Robinson, J.) (holding § 54-102g is regulatory in nature and for that reason dismissing petitioner's writ of habeas corpus). This court therefore has jurisdiction to consider the merits of the state's motions.
II. Merits of the State's Motion
The permission sought by the state, and challenged by the defendants, raises a question of statutory interpretation. "When construing a statute, [the] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, [the court] seek[s] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case . . . In seeking to determine that meaning, General Statutes § 1-2z directs [the court] first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Ziotas v. Reardon Law Firm, P.C., 296 Conn. 579, 587 (2010).
As directed by § 1-2z, the court begins with the text of the statute. The relevant statutory language of § 54-102g is contained in subsection (a) and provides that "[a]ny person who has been convicted of . . . a felony . . . shall, prior to release from custody and at such time as the commissioner may specify, submit to the taking of a blood or other biological sample for DNA . . ." (Emphasis added.) The state asserts that the use of the word "shall" requires the defendants to provide a DNA sample at the behest of the commissioner.
"It is well established that the legislature's use of the word `shall' suggests a mandatory command . . . Nevertheless, [the Connecticut Supreme Court] has also recognized that the word `shall' is not [necessarily] dispositive on the issue of whether a statute is mandatory." (Internal quotation marks omitted.) Southwick at Milford Condo. Asso. v. Road, 294 Conn. 311, 319-20 (2009). "In order to determine whether a statute's provisions are mandatory [the court has] traditionally looked beyond the use of the word shall and examined the statute's essential purpose . . . The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience." (Internal quotation marks omitted.) Wysocki v. Town of Ellington, 109 Conn.App. 287, 298, cert. denied, 289 Conn. 934 (2008).
Because the purpose of § 54-102g is to obtain DNA samples from certain offenders for inclusion in the DNA data bank, it is evident that the submission requirement relates to a matter of substance. Indeed, the fact that § 54-102g is entitled "Blood or other biological sample required from certain offenders for DNA analysis"; (emphasis added); only adds support to the conclusion that the defendants' submission is mandatory. Accordingly, based on the plain language of the statute it is clear that the defendants are mandated to provide a DNA sample when requested to do so by the department of correction.
Whether the department is allowed to take the sample by the use of reasonable physical force upon a refusal to submit, however, is not set forth in the text of § 54-102g. The state argues that although the text does not expressly provide for the use of force, it is inherent within the statute and that the statute's silence does not amount to a prohibition of the use of force. The state further asserts that if the use of force is not permitted the fundamental objective of the statute — appropriately maintaining the DNA data bank — cannot be actualized. The defendants contend that the statute prohibits the forcible taking of DNA because it does not explicitly provide for such taking. They further assert that the only remedy afforded to the state to address their noncompliance with the submission requirement is the initiation of criminal proceedings against them, as provided by subsection (g) of § 54-102g.
Although "statutory silence does not necessarily equate to ambiguity"; Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 198 (2010); here, after consideration of the arguments raised by both parties, the court is convinced that the statute allows for more than one plausible interpretation and is therefore ambiguous within meaning of § 1-2z. Because § 54-102g is ambiguous, it is therefore appropriate for the court to consider extratextual sources to interpret the statute. Id., 202.
The court begins with the legislative history of § 54-102g. A review of the legislative history does not reveal any deliberations undertaken by the legislature concerning the use of force to obtain a DNA sample. Although the legislative history of § 54-102g does not clarify the precise issue as to whether the legislature intended to allow the use of force in the collection of DNA, it imparts a general sense as to the purpose underlying the legislation that provides some guidance. See id. On various occasions within the debate, it is noted that the legislation requires all felony offenders to submit a DNA sample. 46 S. Proc., Pt. 14, 2003 Sess., p. 4319; 46 H.R. Proc., Pt. 20, 2003 Sess., pp. 6647, 6651. The overall importance of the legislation for law enforcement and public safety purposes is also mentioned several times. 46 S. Proc., Pt. 14, 2003 Sess., p. 4320; 46 H.R. Proc., Pt. 20, 2003 Sess., pp. 6649, 6651-53, 6655-60, 6675. Based on the stated importance of the underlying objective to maintain a DNA data bank, as discussed by the legislature, it is apparent to this court that to fully implement the purpose of the statute the data bank must be comprehensive. The data bank would simply be incomplete, and therefore less valuable as the law enforcement tool it was intended to be, unless submissions from all offenders subject to the statute are included. Thus, allowing for the compulsory taking of a DNA sample from those offenders who refuse to submit one upon request is the only way to ensure that the statute's purpose is fully effectuated.
Although the defendants contend that the legislature's silence should be strictly interpreted as a prohibition on the use of force, the court is mindful that it would be inappropriate to determine legislative intent from pure silence on the issue. See State v. Kirsch, 263 Conn. 390, 420 (2003) ("we are left with silence on the issue, from which we do not determine legislative intent"). Legislative silence here has not occurred in a vacuum. It is noteworthy that § 54-102g has been amended many times since its enactment in 1994 and since the language including all felony offenders was added by Public Acts 2003, No. 03-242, § 1. Thus, the legislature has had ample opportunity to specify whether force may or may not be used to obtain a DNA sample but has failed to take action. Although the legislature has not specifically addressed the use of force, the department of correction has had for some time a policy in place concerning the potential use of force for the collection of DNA. This policy has never been addressed by the legislature despite the many opportunities it had to do so when amending the statute.
Prior to the amendment by Public Act 03-242, the statute only required the collection of DNA from persons who committed a criminal offense against a minor and sexual offenders. See General Statutes (Rev. to 2003) § 54-102g(a).
Department of correction administrative directive 9.3, § 8, provides that "[t]he Director of Offender Classification and Population Management shall issue and revise as necessary guidelines for . . . the collection of biological samples for the purposes of Felony DNA." The guidelines created pursuant to that directive provide that upon an inmate's refusal to submit to DNA collection, a "DNA Advisement/Refusal Form" must be completed. See DNA Felony Policy (Rev. 10/2008), available at www.ct.gov/doc/lib/doc/pdf/PolicyDNAFelony.pdf (last visited February 7, 2010). The form notifies the inmate that his refusal to submit to DNA collection is a violation of § 54-102g, which subjects him to arrest. The form also advises the inmate that a court order may be sought to authorize the use of force to obtain the biological sample. Thus, the department of correction has indicated that the use of force is an option, as ordered by the court, to collect DNA from felony offenders who refuse to comply with § 54-102g. The legislature has not taken any action to modify this policy; consequently, such inaction can be viewed as an inherent acceptance of the department's implementation of the DNA collection requirement set forth in the § 54-102g. See Connecticut Light Power Co. v. Public Utilities Control Authority, 176 Conn. 191, 198 (1978) ("inference of legislative concurrence with the agency's interpretation [is] to be drawn from legislative silence concerning that interpretation, especially where the legislature makes unrelated amendments in the same statute").
The use of reasonable physical force, in general, is addressed in administrative directive 6.5. Section 5(A) provides for the use of force "to maintain order and discipline" and the use of restraints is addressed in § 8(A) as a form of physical force "to ensure compliance with an order."
The defendants further argue that the only remedy afforded for noncompliance with the DNA submission requirement is the initiation of criminal proceedings pursuant to subsection (g) of § 54-102g. The fact that the defendants are penalized for refusing to comply, however, does not relieve them of their obligations under the statute. See State v. Jones, Superior Court, judicial district of New Haven, Docket No. 6-333512 (February 5, 1992, Corradino, J.) [ 6 Conn. L. Rptr. 19] (granting state's motion for compulsory taking of nontestimonial evidence from defendant).
In Jones, the defendant's judgment of conviction was reversed by the Supreme Court on the ground that the defendant was entitled to be tried in a bifurcated proceeding. State v. Jones, 234 Conn. 324 (1995). On appeal, the defendant did not claim that the trial court erred in ordering the forcible taking of a biological sample. Id., 355.
In addition, contrary to what the defendants suggest, a judicial order to permit the forcible taking of a DNA sample in the absence of explicit permission by the legislature to do does not raise serious questions concerning the separation of powers. A court order authorizing the use of force to obtain the required DNA sample does not amount to an enactment that would intrude upon the legislature's law-making power. Rather, such an order in fact aides in the implementation of the statute's objective. There is simply no merit to the suggestion that judicial action to promote the legislature's stated purpose somehow usurps the legislative function.
In sum, the legislature's mandate in § 54-102g that certain offenders submit to DNA collection must necessarily include permission for the department of correction to use force to ensure compliance with the statute, despite the criminal penalty contained in subsection (g). To conclude otherwise would amount to a frustration of the legislature's fundamental objective to maintain a DNA data bank. See State v. Peeler, 271 Conn. 338, 426 (2004), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005) (elemental principle of statutory interpretation is that statutes are to be construed in accordance with their fundamental purpose); see also Rendelman v. Scott, United States Court of Appeals, Docket No. 08-8428 (4th Cir. May 19, 2010) ("[T]he [s]tate's right to obtain the DNA sample from designated inmates must necessarily carry with it the right to use a reasonable degree of force that is sufficient to ensure compliance. Otherwise, the [s]tate's right can be rendered meaningless by an inmate who refuses to grant permission . . .").
III. Ex Post Facto Violation
Defendant Banks also claims, in his pro se supplemental memorandum, that DNA collection under § 54-102g does not apply to him because when he was convicted in 1997 the statute did not pertain to all felony offenders. "It is well established that `the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.' Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Moreover, the ex post facto clause prohibits a state from enforcing a law that `imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment [than] that [which was] then prescribed . . .' Cummings v. Missouri, 71 U.S. 277, 325-26, 18 L.Ed. 356 (1867), accord Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) . . ." (Citation omitted.) State v. Kelly, supra, 256 Conn. 88.
It is true that subsection (a) of § 54-102g was amended in 2003 to require all offenders convicted of a felony to submit to DNA collection. See Public Acts 2003, No. 03-242, § 1. Prior to that time, the statute was limited to persons who committed a criminal offense against a minor victim and to sexual offenders. See General Statutes (Rev. to 2003) § 54-102g(a). In order for the defendant's claim to succeed, however, the statute must be penal in nature. See State v. Kelly, supra, 256 Conn. 94. This court concluded above that § 54-102g is a regulatory statute; therefore, the defendant's ex post facto claim must fail.
CONCLUSION
Based on the foregoing, the state's motions for permission to use reasonable physical force to obtain a DNA sample from each of the defendants is hereby granted.