J.D.K. v. Com., 2000-CA-001140-DG.

• Decision Date: 17 August 2001
• Docket Number: No. 2000-CA-001140-DG.,2000-CA-001140-DG.
• Citation: 54 S.W.3d 174
• Parties: J.D.K., a Juvenile, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 174

54 S.W.3d 174

J.D.K., a Juvenile, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2000-CA-001140-DG.

Court of Appeals of Kentucky.

August 17, 2001.

J. David Niehaus, Daniel T. Goyette, Louisville, KY, for appellant.

A.B. Chandler III, Attorney General of Kentucky, Teresa Young, Special Assistant Attorney General, Anne Haynie, Louisville, KY, for appellee.

Before BUCKINGHAM, COMBS and SCHRODER, Judges.

OPINION

SARA WALTER COMBS, Judge:

J.D.K., a juvenile, challenges the authority of the Jefferson District Court to require him to give a blood sample to be compiled in the state's centralized DNA database pursuant to Kentucky Revised Statutes (KRS) 17.170(1). This matter originated in Jefferson District Court, was appealed to Jefferson Circuit Court, and is now before us upon our grant of discretionary review. After our review of the statute, we conclude that the lower courts erred in applying the provisions of KRS 17.170 to the appellant. Thus, we reverse.

On November 18, 1999, J.D.K., then fourteen years of age, pled guilty in Jefferson District Court, Juvenile Session, to two counts of sodomy in the first degree and two counts of sexual abuse based upon inappropriate sexual conduct perpetrated upon his nine-year-old sister and her eight-year-old friend. As a result of his plea, J.D.K. was adjudicated delinquent by the district court and was committed to the Department of Juvenile Justice for placement in a residential treatment center. In addition, J.D.K. was ordered: to attend counseling, to remain away from children under fourteen years of age unless supervised, and to refrain from contact with his two victims unless approved by a therapist.

The issue before us is the Commonwealth's request that J.D.K. also be ordered to provide a blood sample for analysis and storage in the DNA database maintained at the Kentucky State Police Forensic Laboratory. After giving the parties an opportunity to brief the issue of the applicability of KRS 17.170 to juveniles, the district court granted the Commonwealth's motion. In its opinion and order, the district court stated that it was persuaded by the Commonwealth's argument that the statute "does not expressly exclude juveniles." It also analyzed and analogized to statutes pertaining to the retention of fingerprints obtained from juveniles, reasoning that there was "no legitimate reason for treating DNA samples any differently." On appeal, the circuit court adopted the opinion of the district court as its own without further elaboration. The matter is now before this Court, on discretionary review.

As the proper interpretation of KRS 17.170(1) is purely a legal issue, our review is de novo. Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921. 925 (1997); Keeton v. City of Ashland. Ky.App., 883 S.W.2d 894, 896 (1994). It is our duty to construe the statute "so as to effectuate the plain meaning and unambiguous intent expressed in the law." Bob Hook Chevrolet Isaz v. Commonwealth. of Kentucky, Transportation Cabinet, Ky., 983 S.W.2d 488, 492 (1998). We understand that the judiciary is "not at liberty to add or subtract from the legislative enactment ..." or to attempt to cure any omissions. Commonwealth v. Harrelson, Ky., 14 S.W.3d 541, 546 (2000); Commonwealth v. Taylor, Ky., 945 S.W.2d 420 (1997).

All fifty states and the federal government have enacted DNA database legislation in some form or another. See Landry v. Attorney General, 429 Mass. 336, 709 N.E.2d 1085, 1087 (Mass.1999); Anno. Validity, Construction, and Operation of State DNA Database Statutes, 76 ALR5th 239 (2000). The Kentucky General Assembly established a DNA database in 1992 when it enacted KRS 17.170 and 17.175. Our legislature expressed its purpose in creating and maintaining a DNA database as follows:

to assist federal, state, and local criminal justice and law enforcement agencies within and outside the Commonwealth in the identification, detection, or exclusion of individuals who are subjects of the investigation or prosecution of sex-related crimes, violent crimes, or other crimes and the identification and location of missing and unidentified persons.

KRS 17.175(2).

KRS 17.170(1), the specific section of the statutory scheme at issue in this case, identifies those who are required to provide blood samples for inclusion in the database as follows:

Any person convicted on or after July 14, 1992, of a felony offense under KRS Chapter 510 or KRS 530.020, shall, or who is in the custody of the Department July 14, 1992, tinder KRS Chapter 510 or KRS 530.020 may, have a sample of blood taken by the Department of Corrections for DNA (deoxyribonucleic acid) law enforcement identification purposes and inclusion in law enforcement identification databases.

In challenging the DNA-testing order, J.D.K. argues that he does not come within the purview of the statute for the reason that he has never been "convicted" of any crime. He relies on the provisions of KRS 635.040 as authority for the effect to be given to juvenile court adjudications. That statute, which was in existence at the time KRS 17.170 was enacted, specifically and unambiguously forbids treating a juvenile adjudication as a conviction for any purpose:

No adjudication by a juvenile session of district court shall be deemed a conviction, nor shall such adjudication operate to impose any of the civil disabilities ordinarily resulting from a criminal conviction, nor shall any child be found guilty or be deemed a criminal by reason of such adjudication.

KRS 635.040.

J.D.K. also argues that he was not convicted or adjudicated guilty of a felony, which by definition includes: "an offense for which a sentence to a term of imprisonment of at least one (1) year in the custody of the Department of Corrections may be imposed" (KRS 500.080(5)) or an offense "punishable by death or confinement in the penitentiary." (KRS 431.060(1)). J.D.K. contends that the court must presume that the legislature was aware of these definitions at the time that it enacted the DNA database legislation and that it did not intend to include juveniles (adjudicated as public offenders in juvenile court) within the class of persons from whom blood samples could be obtained.

We agree that KRS 635.040 nullifies the Commonwealth's attempt to characterize J.D.K.'s adjudication as a "conviction" for purposes of applying KRS 17.170. Furthermore,...