State v. Banks

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STATE OF CONNECTICUT v. MARK BANKS
(SC 19246)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Vertefeuille, Js.
Argued January 28—officially released July 5, 2016
Daniel J. Foster, assigned counsel, for the appel-
lant (defendant).
Michael Gailor, executive assistant state’s attorney,
with whom, on the brief, was Gail P. Hardy, state’s
attorney, for the appellee (state).
Opinion
ESPINOSA, J. In this certified appeal1 we consider
whether the Appellate Court properly resolved a series
of claims that the defendant, Mark Banks, raises in
connection with General Statutes (Rev. to 2009) § 54-
102g,2 which authorizes the Commissioner of Correc-
tion to collect DNA samples from currently incarcerated
felons in order to maintain a DNA data bank to assist
in criminal investigations. The defendant appeals, fol-
lowing our grant of certification, from the judgment
of the Appellate Court affirming both the trial court’s
judgment granting the state permission to use reason-
able physical force to obtain a DNA sample from the
defendant and the judgment of conviction rendered fol-
lowing the defendant’s refusal to submit to the taking
of a blood or other biological sample for DNA analysis
in violation of § 54-102g (g). State v. Banks, 143 Conn.
App. 485, 487–88, 71 A.3d 582 (2013). The defendant
contends that the Appellate Court: (1) improperly con-
cluded that the trial court had authority to grant the
state permission to use reasonable physical force in
obtaining a DNA sample from him prior to the 2011
amendment to § 54-102g that incorporated a provision
authorizing the state to use such force; see Public Acts
2011, No. 11-144, § 1 (P.A. 11-144); and (2) incorrectly
determined that § 54-102g, as applied to the defendant,
did not violate his due process rights and the ex post
facto clause of the federal constitution. See U.S. Const.,
art. I, § 10. We conclude that the Appellate Court prop-
erly resolved both of the defendant’s claims and there-
fore affirm the judgment of the Appellate Court.
The following facts and procedural history are rele-
vant to the resolution of this appeal. In 1997, following
a jury trial, the defendant was convicted of four counts
of robbery in the first degree in violation of General
Statutes § 53a-134 (a) (4), four counts of kidnapping in
the first degree in violation of General Statutes § 53a-
92, and two counts of criminal possession of a pistol
or revolver in violation of General Statutes (Rev. to
1995) § 53a-217c for robberies committed in 1995. See
State v. Banks, 59 Conn. App. 112, 113, 755 A.2d 951,
cert. denied, 254 Conn. 950, 762 A.2d 904 (2000). On
December 19, 1997, the trial court sentenced the defen-
dant to fifteen years incarceration to run consecutively
with a sentence the defendant was already serving from
a prior conviction. The defendant has remained incar-
cerated since his 1997 convictions.
In his brief to this court, the defendant states that
on December 8 and 29, 2009, personnel from the Depart-
ment of Correction (department) instructed him to sub-
mit to the taking of a DNA sample pursuant to § 54-
102g (a), but that he refused to comply. On March 17,
2010, department personnel again instructed the defen-
dant and nine other inmates to provide DNA samples
in accordance with the statute. The defendant remained
steadfast in his refusal to submit to the taking of a
DNA sample.
On May 19, 2010, the state filed a motion in the trial
court seeking permission to use reasonable physical
force to collect a DNA sample from the defendant and
a fellow inmate, Roosevelt Drakes,3 who had likewise
refused to submit a sample. The state cited § 54-102g
as the authority for its motion. The defendant opposed
the state’s motion, arguing that if he refused to submit
a DNA sample for inclusion in the DNA data bank, the
only recourse available to the state was to prosecute
him pursuant to § 54-102g (g) for refusal to provide a
blood or other biological sample for DNA analysis.4 The
defendant further argued that he was not required to
submit a DNA sample because at the time of his convic-
tions in 1997, General Statutes (Rev. to 1997) § 54-102g
applied only to those persons convicted of certain sex
offenses and did not apply to incarcerated felons, such
as the defendant, until the legislature amended the stat-
ute in 2003. See Public Acts 2003, No. 03-242, § 1 (P.A.
03-242). Accordingly, the defendant claimed that requir-
ing him to provide a DNA sample would constitute an
added punishment to his original sentence and run afoul
of the ex post facto clause.
On February 8, 2011, the trial court, Mullarkey, J.,
issued a written memorandum of decision rejecting the
defendant’s claims and granting the state’s motion for
permission to use reasonable physical force to collect
a DNA sample from the defendant. The trial court deter-
mined that submitting to the taking of a DNA sample for
the purposes of § 54-102g was a nonpunitive, regulatory
measure that did not affect the defendant’s original 1997
sentence and, therefore, that the trial court had subject
matter jurisdiction over the state’s motion. Likewise,
because the trial court determined that § 54-102g is
regulatory in nature, it concluded that the statute did
not run awry of the ex post facto clause. Additionally,
after examining the text and legislative history of § 54-
102g, the court determined that the statute necessarily
included the option of enforcing compliance through
reasonable force, because allowing incarcerated felons
to simply refuse to provide DNA samples would sub-
stantially frustrate the legislature’s goal of creating a
comprehensive DNA data bank to aid in criminal investi-
gations. The defendant appealed to the Appellate Court
from the trial court’s decision.5
Subsequently, the defendant was charged via a substi-
tute information with refusal to submit to the taking of
a blood or biological sample for DNA analysis in viola-
tion of § 54-102g (g) for his March 17, 2010 refusal. The
defendant moved to dismiss the charge and, at a hearing
before the trial court, Carbonneau, J., presented similar
arguments to those he previously presented in opposi-
tion to the state’s motion to use physical force, namely,
that application of the statute would violate the ex post
facto clause as applied to him. The trial court adopted
the reasoning of Judge Mullarkey in his memorandum
of decision, concluded that the taking of a DNA sample
was not a penalty and denied the defendant’s motion
to dismiss. Following a bench trial, the defendant was
found guilty and sentenced to one year incarceration,
consecutive to his existing sentences. The defendant
filed a separate appeal to the Appellate Court from the
judgment of conviction.
The Appellate Court considered the defendant’s con-
solidated appeals and ultimately upheld both the defen-
dant’s conviction and the trial court’s grant of the state’s
motion for permission to use reasonable physical force
in obtaining a DNA sample from the defendant. State
v. Banks, supra, 143 Conn. App. 485, 487–88. The defen-
dant argued that: (1) the trial court lacked subject mat-
ter jurisdiction to consider the state’s motion; (2) § 54-
102g, as applied to him, violated his due process rights
and the ex post facto clause; (3) the legislature, although
it had amended § 54-102g in 2011 to authorize the use
of reasonable force to obtain a DNA sample; P.A. 11-
144; did not intend that amendment to have retroactive
effect; and (4) prior to 2011, § 54-102g did not authorize
the department to use reasonable force. State v. Banks,
supra, 492, 508. The Appellate Court, largely adopting
the reasoning of the trial court’s memorandum of deci-
sion, concluded that § 54-102g is regulatory rather than
punitive in nature and, therefore, that the trial court
had jurisdiction to consider the state’s motion and that
application of the statute to the defendant did not vio-
late his due process rights or contravene the ex post
facto clause. Id., 499, 508–10. In analyzing the text and
history of § 54-102g, the Appellate Court determined
that the statute was not applied retroactively to the
defendant and that, as the trial court concluded, the
statute authorized the use of reasonable force to obtain
a DNA sample from those who refused to willingly
submit one. Id., 507. We thereafter granted the defen-
dant’s petition for certification to appeal. See footnote
1 of this opinion.
Prior to addressing the defendant’s substantive
claims, we provide an overview of the history of the
statutory scheme which underlies the defendant’s
claims. The current revision of § 54-102g (b) requires
DNA samples to be collected from all persons convicted
of a felony, among others. When initially enacted in
1994, however, the statute only required the collection
of DNA samples from persons convicted of certain sex
offenses. Public Acts 1994, No. 94-246, § 1; see General
Statutes (Rev. to 1995) § 54-102g. The statute was fur-
ther amended in 1999 to extend the DNA collection
requirements to individuals who had committed a crimi-
nal offense against a victim who was a minor. Public
Acts 1999, No. 99-183, § 1. In 2003, the legislature
expanded the scope of the statute to require all incarcer-
ated felons to submit a DNA sample for inclusion in
the state DNA data bank. See P.A. 03-242, § 1. The 2003
amendment broadening the category of those subject
to § 54-102g is the source of the defendant’s present
appeal.6
I
A
We first address the defendant’s claim that the Appel-
late Court incorrectly concluded that the trial court
properly granted the state’s motion for permission to
use reasonable physical force as a means of obtaining
a sample of the defendant’s DNA. State v. Banks, supra,
143 Conn. App. 507. The defendant contends that § 54-
102g is penal rather than regulatory in nature and, there-
fore, that the trial court was without jurisdiction
because the defendant was already serving the senten-
ces for his underlying criminal convictions. The state
avers that § 54-102g is not punitive in nature and that
the trial court properly had jurisdiction to consider the
state’s motion given that the court’s actions would not
affect the defendant’s original sentences. We agree with
the state.
In the most fundamental sense, subject matter juris-
diction ‘‘involves the authority of a court to adjudicate
the type of controversy presented by the action before
it.’’ (Internal quotation marks omitted.) State v. Fowlkes,
283 Conn. 735, 739, 930 A.2d 644 (2007). It is well settled
that, in criminal matters, ‘‘[t]he jurisdiction of the sen-
tencing 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 quota-
tion marks omitted.) State v. Waterman, 264 Conn. 484,
491, 825 A.2d 63 (2003). When determining whether a
trial court properly had subject matter jurisdiction over
an action, we recognize that ‘‘every presumption
favoring jurisdiction should be indulged.’’ (Internal quo-
tation marks omitted.) State v. Fowlkes, supra, 739.
We exercise plenary review over questions of a court’s
subject matter jurisdiction. Id., 738.
The critical question in determining whether a court
may take action affecting a defendant’s sentence follow-
ing its imposition is whether the requested action is
punitive in nature. If the requested action ‘‘is not puni-
tive in nature, then a defendant’s sentence is not
affected, and the trial court has jurisdiction to take that
action. If it is punitive, then a defendant’s sentence is
affected, and the trial court lacks jurisdiction to take
that action.’’ (Emphasis in original.) Id., 740. In State
v. Waterman, supra, 264 Conn. 484, we addressed a
similar jurisdictional claim to that raised by the defen-
dant in the present case. In that case, the defendant
challenged the jurisdiction of the trial court to make a
finding following the defendant’s sentencing that he
must register as a sex offender pursuant to General
Statutes § 54-251, a provision in Connecticut’s version
of Megan’s Law, General Statutes § 54-250 et seq. State
v. Waterman, supra, 488. The defendant argued that
registering as a sex offender was a punitive measure
and that the court was without jurisdiction to order
him to register, as he had already begun serving the
sentence for his underlying convictions. Id., 489. We
employed a two part test to determine whether the
requirements of a statute are punitive in nature:
‘‘[U]nder the first part of the test, the court examine[s]
whether the legislature ha[s] intended the statute [under
consideration] to be criminal or civil, in other words,
punitive in law. . . . Under the second part of the test,
the . . . court consider[s] whether, even if not punitive
in law, the statute [is] nevertheless punitive in fact, that
is, whether the statute [is] so punitive in fact that it
[cannot] be seen as civil in nature.’’ (Internal quotation
marks omitted.) State v. Fowlkes, supra, 283 Conn. 741;
State v. Waterman, supra, 492–93; see also State v.
Kelly, 256 Conn. 23, 92, 770 A.2d 908 (2001). We deter-
mined that the requirements of Megan’s Law were min-
isterial only; State v. Waterman, supra, 497; and relied
on the conclusions of the United States District Court
for the District of Connecticut in a previous challenge
to the same law that neither the text of the statute nor
the legislative history evinced a punitive purpose. Id.,
493–94; see Doe v. Lee, 132 F. Supp. 2d 57, 67–68 (D.
Conn.), aff’d sub nom. Doe v. Dept. of Public Safety ex
rel. Lee, 271 F.3d 38 (2d Cir. 2001), rev’d on other
grounds sub nom. Dept. of Public Safety v. Doe, 538
U.S. 1, 123 S. Ct. 1160, 155 L. Ed. 2d 98 (2003). Further-
more, the statute did not necessitate modifying, open-
ing, or correcting the defendant’s original sentence in
order to ensure the defendant’s compliance with the
registration requirements. State v. Waterman, supra,
497. We therefore concluded that the registration
requirements of Megan’s Law are regulatory in nature
and not punitive. Id., 489. Accordingly, we determined
that the trial court had jurisdiction to order the defen-
dant’s registration as the requirement did not affect the
defendant’s original sentence. Id., 498.
Like the similar claim in Waterman, the defendant’s
argument that the trial court did not have jurisdiction
to grant the state’s motion for permission to use reason-
able force because § 54-102g constitutes a penalty must
fail. After our review of § 54-102g, we conclude that the
Appellate Court properly determined that the require-
ments in the statute to provide DNA samples are not
punitive in nature and, therefore, the trial court properly
had subject matter jurisdiction to consider the state’s
motion.
Under the first part of our analysis, we examine the
statutory text and conclude that the legislature did not
intend for DNA collection to be punitive in the context
of the statutory scheme that encompasses § 54-102g. In
determining the legislative purpose of a statute, we
employ the familiar rules of statutory construction. See
Lieberman v. Aronow, 319 Conn. 748, 756–57, 127 A.3d
970 (2015); In re Tyriq T., 313 Conn. 99, 104–105, 96
A.3d 494 (2014). Our analysis of § 54-102g is therefore
guided by General Statutes § 1-2z and standard princi-
ples of statutory construction. As both the trial court
and the Appellate Court observed, § 54-102g (f) demon-
strates that the purpose of the statute is to further the
nonpunitive goal of maintaining a DNA data bank to
assist in criminal investigations: ‘‘The identification
characteristics of the profile resulting from the DNA
analysis shall be stored and maintained . . . in a DNA
data bank and shall be made available only as provided
in section 54-102j.’’ General Statutes (Rev. to 2009) § 54-
102g (f). We agree that the overall purpose of the statute
is not to punish those convicted of crimes by requiring
them to submit a DNA sample, but to use DNA as a
means of aiding law enforcement investigations. See
Maryland v. King, U.S. , 133 S. Ct. 1958, 1966,
186 L. Ed. 2d 1 (2013) (‘‘[L]aw enforcement, the defense
bar, and the courts have acknowledged DNA testing’s
unparalleled ability both to exonerate the wrongly con-
victed and to identify the guilty. It has the potential to
significantly improve both the criminal justice system
and police investigative practices.’’ [Internal quotation
marks omitted.]).
Indeed, the other provisions of the statutory scheme
demonstrate that the collection of DNA samples is for
regulatory rather than punitive purposes. For example,
the statutory scheme contains provisions regulating: the
manner in which DNA samples are collected; General
Statutes § 54-102h; the manner in which the analysis of
DNA samples is to be conducted; General Statutes § 54-
102i; and the legitimate purposes for which information
in the DNA data bank may be used. General Statutes
§ 54-102j. Likewise, the statutory scheme contains pro-
visions that: outline penalties for misuse of information
in the DNA data bank; General Statutes § 54-102k; pro-
vide for the destruction of DNA data bank information
upon a person’s exoneration; General Statutes § 54-102l;
and create a DNA Data Bank Oversight Panel charged
with safeguarding the information in the DNA data bank
and the privacy of individuals registered therein. Gen-
eral Statutes § 54-102m. All of these provisions further
the regulatory purpose and ensure that the DNA data
bank is used only in accordance with its proper purpose
of assisting in criminal investigations. Notably, all fifty
states have enacted statutes similar to Connecticut’s
that require convicted felons to submit a DNA sample
in order to aid in criminal investigations. Maryland v.
King, supra, 133 S. Ct. 1968. In challenges to those
statutory schemes, our sister courts have regularly held
that the collection of DNA in this context is regulatory
and not punitive.7 Accordingly, § 54-102g is not punitive
in law.
Although we conclude that § 54-102g is not punitive in
law, under the second part of our analysis, we consider
whether the statute may be ‘‘ ‘punitive in fact’ ’’ if the
punitive effect of the statute is so substantial that it
swallows the regulatory or civil purpose of the statute.
State v. Waterman, supra, 264 Conn. 492–93. When
inquiring whether a statute is actually punitive in fact,
we examine the factors first outlined by the United
States Supreme Court in Kennedy v. Mendoza-Marti-
nez, 372 U.S. 144, 168–69, 83 S. Ct. 554, 9 L. Ed. 2d 644
(1963); see State v. Alexander, 269 Conn. 107, 118, 847
A.2d 970 (2004). These factors include whether the chal-
lenged action ‘‘has historically been regarded as punish-
ment, whether it comes into play only on a finding of
scienter, whether its operation will promote the tradi-
tional aims of punishment—retribution and deterrence,
whether the behavior to which it applies is already a
crime, whether an alternative purpose to which it may
rationally be connected is assignable for it, and whether
it appears excessive in relation to the alternative pur-
pose assigned . . . .’’ (Footnotes omitted.) Kennedy v.
Mendoza-Martinez, supra, 168–69. We recognize that
these factors ‘‘are all relevant to the inquiry, and may
often point in differing directions.’’ Id., 169. Addition-
ally, ‘‘[s]ometimes one factor will be considered nearly
dispositive of punitiveness in fact, while sometimes
another factor will be crucial to a finding of nonpuni-
tiveness.’’ (Internal quotation marks omitted.) State v.
Kelly, supra, 256 Conn. 93.
In concluding that § 54-102g is not punitive in fact,
the Appellate Court rejected the defendant’s claim that
because refusal to submit a DNA sample can result in
a criminal prosecution pursuant to § 54-102g (g) the
statute is necessarily punitive in its effect. State v.
Banks, supra, 143 Conn. App. 498–99. We agree with
the Appellate Court’s determination that a statutory
provision that subjects a person to prosecution for non-
compliance does not automatically convert an other-
wise regulatory statutory scheme into a penal statute. At
the time the defendant in the present case was charged,
§ 54-102g (g) provided that any person who failed to
submit to the taking of a DNA sample was guilty of a
class A misdemeanor. See footnote 4 of this opinion.
Megan’s Law contains several provisions similar to § 54-
102g (g) whereby a person who is required to register
as a sex offender, yet fails to do so, is guilty of a class
D felony. See General Statutes §§ 54-251 (e), 54-252 (d),
54-253 (e) and 54-254 (b). In State v. Kelly, supra, 256
Conn. 94, we concluded that the registration require-
ments of Megan’s Law, despite the existence of penalty
provisions, were regulatory rather than punitive in
nature. The penalty for failure to submit a DNA sample
is no greater than the penalty for failure to register as
a sex offender and the defendant offers no reason as
to why that penalty is any more burdensome in this
context. Accordingly, consistent with our decision in
Kelly, the penalty provision of § 54-102g (g) does not
render the entire statutory scheme punitive in fact.
Our examination of the other Mendoza-Martinez fac-
tors does not lead us to the conclusion that § 54-102g
is punitive in fact. We are unaware of any tradition that
considers the submission of a DNA sample to be a
historically recognized punishment and the defendant
offers no support for such a proposition.8 Likewise,
requiring convicted felons to submit to the taking of a
DNA sample in no way furthers the retributive or deter-
rent goals of punishment for their underlying crimes.
The purpose of collecting DNA samples is not to punish
felons for their underlying crimes or to deter future
criminals, but to bolster the usefulness of the DNA data
bank in criminal investigations.9 The statutory scheme
furthers this purpose by only imposing a minimal incon-
venience on those who must submit DNA samples and
thereafter safeguards the interests of those in the data
bank via the DNA Data Bank Oversight Panel and the
destruction of DNA records upon exoneration. The
goals expressed in the statute and the operative statu-
tory mechanisms by which they are to be carried out are
inconsistent with the goals of punishment. We therefore
conclude that the Appellate Court properly determined
that § 54-102g is not punitive in fact under the factors
set forth in Mendoza-Martinez. As the statute is neither
punitive in law or in fact and therefore does not affect
the defendant’s original sentences, the Appellate Court
was correct in its conclusion that the trial court properly
had subject matter jurisdiction over the state’s motion
seeking permission to use reasonable physical force to
obtain a DNA sample from the defendant.
B
Although the trial court was vested with jurisdiction
to consider the state’s motion, we must next determine
whether the trial court properly granted the state’s
motion for permission to use reasonable physical force.
At the time of the state’s motion, § 54-102g contained
no provisions explicitly outlining the remedies available
to the department should an incarcerated felon refuse
to willingly submit to the taking of a DNA sample. The
legislature subsequently amended the statute to specifi-
cally allow department personnel to use reasonable
force to obtain samples from those who refuse to do
so. See P.A. 11-144. Thus, we must determine whether,
prior to the legislature’s amendment, it was permissible
for the trial court to authorize the state to use reason-
able physical force to obtain a sample of the defen-
dant’s DNA.
In its memorandum of decision on the state’s motion,
the trial court initially concluded that the plain meaning
of § 54-102g is clear in that the DNA sample requirement
is mandatory. The court observed, however, that at that
point in time, the statute did not expressly provide for
the use of reasonable force in the event of an individu-
al’s refusal to submit a sample. The defendant argued
that the statute’s silence evinced an inability to imple-
ment force as a means of obtaining the sample whereas
the state argued that if the use of reasonable force were
not permissible then the entire purpose of the statute
would be rendered meaningless by the ability of inmates
to refuse sampling. Determining that both interpreta-
tions were plausible, the trial court concluded that § 54-
102g is ambiguous within the meaning of § 1-2z and
proceeded to review the relevant legislative history,
which provided no clarity on the use of reasonable
force in this context. The trial court ultimately deter-
mined that the use of reasonable force to obtain a DNA
sample was inherent in the statute because: (1) the
legislature’s silence on the topic could not be construed
as evidence of legislative intent to the contrary; (2) it
was department policy to seek a court order authorizing
reasonable force in the event of an individual’s refusal
and the legislature had not addressed that question
despite making interim revisions to the statute; and (3)
the overall purpose of the statute would be substantially
frustrated otherwise. Accordingly, the trial court
granted the state’s motion.
The Appellate Court affirmed the trial court’s deci-
sion, holding that the department’s ability to use reason-
able force to obtain a DNA sample is implicit in the
statute as its fundamental purpose would be subverted
otherwise. State v. Banks, supra, 143 Conn. App. 505–
507. Furthermore, the Appellate Court observed that
the legislature had since amended the statute to permit
the use of reasonable force, thereby clarifying the mean-
ing of the original statute. Id., 507–508; see P.A. 11-144,
§ 1. On appeal before this court, the defendant argues
that the Appellate Court erred in its interpretation of
the statute, and that, prior to its 2011 amendment, § 54-
102g contained no authority, implicit or otherwise, to
use reasonable force to obtain a DNA sample. The state
argues in response that the Appellate Court properly
upheld the trial court’s reading of the statute and that
to hold otherwise would severely undercut the legisla-
ture’s goals in enacting § 54-102g. We disagree with the
defendant’s argument and conclude that the Appellate
Court correctly upheld the trial court’s interpretation
of the statute.
As the defendant’s claim presents us with a question
of statutory interpretation, we are guided by § 1-2z and
the standard precepts of statutory construction. See
Lieberman v. Aranow, supra, 319 Conn. 756–58. Gen-
eral Statutes (Rev. to 2009) § 54-102g (a) provides in
relevant part that ‘‘[a]ny person who has been convicted
of a . . . felony . . . shall, prior to release from cus-
tody and at such time as the [C]ommissioner [of Correc-
tion] may specify, submit to the taking of a blood or
other biological sample for DNA . . . analysis . . . .’’
Although the statute was, at the time of the state’s
motion, silent on the question of the department’s use
of reasonable force to obtain a DNA sample, the state
contends that the legislature’s use of the word ‘‘shall’’
in the language of the statute denotes a mandatory duty
on the part of an individual to submit to the taking of
a DNA sample upon the request of the department. We
recognize that ‘‘the legislature’s use of the word ‘shall’
suggests a mandatory command,’’ and yet ‘‘the word
‘shall’ is not [necessarily] dispositive on the issue of
whether a statute is mandatory.’’ Southwick at Milford
Condominium Assn., Inc. v. 523 Wheelers Farm Road,
Milford, LLC, 294 Conn. 311, 319–20, 984 A.2d 676
(2009). Thus, the proper question in determining
whether a statute is mandatory is ‘‘whether the pre-
scribed 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.) United Illuminat-
ing Co. v. New Haven, 240 Conn. 422, 465, 692 A.2d
742 (1997).
The use of the word ‘‘required’’ along with ‘‘shall’’ in
the text of the statute seems to imply that submitting
to the taking of a DNA sample is mandatory. More
tellingly, the objective at the heart of § 54-102g is the
DNA data bank, the creation and efficacy of which
would be substantially impeded without the collection
of DNA samples from those persons covered by the
statute. Thus, the submission of DNA samples by con-
victed felons is certainly a matter of substance rather
than one of mere convenience, as fulfillment of the
statute’s goals would be utterly hindered by an individu-
al’s refusal to submit a DNA sample. Although the plain
language of the statute clearly suggests that § 54-102g
imposes a mandatory obligation on an individual to
submit to the taking of a DNA sample, the mandatory
language of the statute does not address the crux of
the defendant’s claim, namely whether the statute
authorizes the use of reasonable force to obtain a sam-
ple from an unwilling individual. Although we observe
that ‘‘statutory silence does not necessarily equate to
ambiguity’’; (internal quotation marks omitted) Hart-
ford/Windsor Healthcare Properties, LLC v. Hartford,
298 Conn. 191, 198, 3 A.3d 56 (2010); the state and the
defendant offer vying interpretations of the statute in
this regard. We therefore conclude, as the trial court
and Appellate Court did, that the statute is ambiguous
and that we must turn to its legislative history to aid
in our analysis. See State v. Banks, supra, 143 Conn.
App. 505.
Both the trial court and the Appellate Court, after
reviewing the legislative history of § 54-102g, ultimately
concluded that the history shed no light on the legisla-
ture’s intentions as to the use of reasonable force to
obtain a DNA sample. Id. After our own review of the
relevant legislative history, we must agree with the con-
clusions of the trial court and the Appellate Court. The
legislature never discussed in floor debates the question
of using reasonable force as a means of obtaining a
DNA sample and, as a result, the discussions of the
legislators on the statute offer no guidance to our pre-
sent inquiry.
At first blush, the silence of the legislature during its
debate on the statute appears to lend some support to
the defendant’s position that the silence of the statute
militates against the use of reasonable force to obtain
a DNA sample. It is well established, however, that
when ‘‘we are left with silence on [an] issue . . . we
do not determine legislative intent’’ from such silence.
State v. Kirsch, 263 Conn. 390, 420, 820 A.2d 236 (2003).
Additionally, the legislature’s silence on the question
of reasonable force during the 2003 amendment to § 54-
102g was not the legislature’s first or last word on the
issue. See P.A. 03-242. In 2011, the legislature amended
§ 54-102g to allow the department to use reasonable
force to obtain a DNA sample from an individual, such
as the defendant, who refuses to willingly submit to
the taking of a sample. See P.A. 11-144, § 1. This court
recognizes that ‘‘an amendment which in effect con-
strues and clarifies a prior statute must be accepted as
the legislative declaration of the meaning of the original
act.’’ (Internal quotation marks omitted.) Bhinder v.
Sun Co., 263 Conn. 358, 368–69, 819 A.2d 822 (2003);
State v. State Employees’ Review Board, 239 Conn. 638,
648–49, 687 A.2d 134 (1997). Thus, the subsequent
amendment demonstrates the legislature’s acknowledg-
ment that it would be necessary at times to use reason-
able force in order to further the goals of the statute.
In the absence of any determinative legislative history
on the statute, the Appellate Court focused on the fact
that given the mandatory and substantive import of the
DNA submission requirement, to permit individuals to
refuse to comply with the statute at will would seriously
defeat the statute’s goal of creating a DNA data bank
to assist in criminal investigations. State v. Banks,
supra, 143 Conn. App. 506–507. We agree with the Appel-
late Court’s determination that, prior to the 2011 amend-
ment, the use of reasonable force to obtain a DNA
sample from an unwilling individual was ‘‘inherent’’ in
§ 54-102g. To conclude otherwise would result in abso-
lute frustration of the legislature’s objective in establish-
ing and maintaining a DNA data bank. We are mindful
that reviewing courts should not construe statutes ‘‘in
disregard of their context and in frustration of the obvi-
ous legislative intent’’ or in a manner ‘‘that is hostile to
an evident legislative purpose . . . or in a way that is
contrary to common sense.’’ (Citations omitted; internal
quotation marks omitted.) State v. Skakel, 276 Conn.
633, 678, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127
S. Ct. 578, 166 L. Ed. 2d 428 (2006).
If we were to accept the defendant’s position, those
persons required to submit a DNA sample under the
statute would be free to openly refuse and § 54-102g
would be reduced to a nullity and its objectives resound-
ingly defeated. Although, as the defendant observes,
§ 54-102g (g) subjects a person to further criminal pros-
ecution for refusal to submit a DNA sample, such prose-
cution does not, as the defendant’s case itself
demonstrates, remedy the fact that the ultimate objec-
tive of § 54-102g has been thwarted. For the statute to
be effective, it must necessarily allow for the depart-
ment to use reasonable force in those instances where
a person required to submit to the taking of a DNA
sample refuses to do so. See Rendelman v. Scott, 378
Fed. Appx. 309, 313 (4th Cir. 2010) (‘‘[T]he [s]tate’s right
to obtain [a] 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 meaning-
less by an inmate who refuses to grant permission
. . . .’’).
Furthermore, at the time of the state’s motion, the
department had a policy in place that when an inmate
subject to § 54-102g refused to provide a DNA sample,
department personnel were to direct the inmate to com-
plete a ‘‘DNA Advisement/Refusal Form’’ (refusal form)
that informed the inmate that refusal to submit a sample
pursuant to the statute was a prosecutable offense. See
Department of Correction, Felony DNA Policy (October
1, 2010), available at www.ct.gov/doc/lib/doc/pdf/Policy
DNAFelony.pdf (last visited May 6, 2016). In its memo-
randum of decision, the trial court observed that the
refusal form also advised an inmate that if the inmate
continued to refuse to provide a sample, the department
could seek a court order to use reasonable force in
order to ensure compliance with the statute. The court
noted that, despite the existence of such a policy, the
legislature had not taken any action in subsequent
amendments to disavow the state’s policy of seeking the
authorization of reasonable force should an individual
refuse to submit to sampling. See generally Connecticut
Light & Power Co. v. Public Utilities Control Authority,
176 Conn. 191, 198, 405 A.2d 638 (1978). Indeed, the
legislature’s 2011 amendment took the opposite course
of action by explicitly amending the statute to permit
the department to use reasonable force in those cases
where an individual refuses to comply with the statute.
Accordingly, we agree with the conclusions of the
Appellate Court. Given the statute’s mandatory nature,
its overall goals and objectives, and the legislature’s
subsequent amendment to the statute, it was proper
for the trial court to grant the state’s motion seeking
permission to use reasonable physical force to obtain
a DNA sample from the defendant.
II
We next address the defendant’s claim that the Appel-
late Court incorrectly determined that the application
of § 54-102g to the defendant did not run afoul of the
ex post facto clause of the federal constitution. The
defendant suggests that, because at the time of his
underlying robbery related convictions in 1997, the stat-
ute applied only to those convicted of certain sex
offenses, the requirement imposed by the 2003 amend-
ment to § 54-102g that all convicted felons submit to
the taking of a DNA sample violates the ex post facto
clause and the defendant’s due process rights. The state
counters that the defendant’s claim must fail due to the
fact that providing a DNA sample is not a punitive
sanction and therefore it does not contravene the ex
post facto clause or the defendant’s due process rights.
We agree with the state that § 54-102g does not violate
the federal constitution’s bar on ex post facto laws.
The constitution of the United States, article one,
§ 10, provides in relevant part that ‘‘[n]o State shall . . .
pass any . . . ex post facto Law . . . .’’ A law may
be considered to violate the ex post facto clause if it
‘‘punishes as a crime an act previously committed,
which was innocent when done; which makes more
burdensome the punishment for a crime, after its com-
mission, or which deprives one charged with [a] crime
of any defense available according to law at the time
when the act was committed . . . .’’ (Internal quotation
marks omitted.) Dobbert v. Florida, 432 U.S. 282, 292,
97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977); see also State
v. Faraday, 268 Conn. 174, 199, 842 A.2d 567 (2004).
In order to run awry of the ex post facto clause, a law
‘‘must be retrospective—that is, it must apply to events
occurring before its enactment—and it must disadvan-
tage the offender affected by it . . . .’’ (Internal quota-
tion marks omitted.) State v. Faraday, supra, 195. 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). Accordingly, ‘‘regulatory measures do
not constitute punishment as proscribed by the ex post
facto clause.’’ State v. Kelly, supra, 256 Conn. 91. For
the purposes of the ex post facto clause, our inquiry
as to whether a statute is penal or not is the same as
that set forth in part I A of this opinion and our decisions
in State v. Kelly, supra, 92, and State v. Waterman, 264
Conn. 492–93.
The defendant first raised his ex post facto claim in
a pro se supplemental memorandum at the time the
state filed its motion seeking permission to use reason-
able force against the defendant. The trial court rejected
the defendant’s claim on the ground that § 54-102g is
not a penal statute and therefore does not fall within the
purview of the ex post facto clause. When the defendant
was subsequently prosecuted for violating § 54-102g,
the defendant moved to dismiss on the basis of the ex
post facto clause and the trial court denied the motion
on the basis of the same reasoning it relied on in grant-
ing the state’s previous motion to use reasonable physi-
cal force. On appeal, the Appellate Court concluded
that its determination that the statute was regulatory
rather than punitive foreclosed the defendant’s ex post
facto claim and it therefore affirmed the trial court’s
judgments. State v. Banks, supra, 143 Conn. App.
509–10.
As the defendant notes, prior to the amendment in
2003 to § 54-102g, making all felons subject to the
requirements of that statute; P.A. 03-242; § 54-102g
applied only to those persons who had been convicted
of particular sex offenses or who had committed an
offense against a victim who was a minor. See General
Statutes (Rev. to 2003) § 54-102g (a). Thus, at the time
the defendant was convicted of his underlying offenses
in 1997, he was not required to submit to the taking of
a DNA sample for inclusion in the DNA data bank. The
2003 amendment, however, broadened the scope of the
statute to include all persons convicted of a felony—a
group that includes the defendant—to submit a biologi-
cal sample for the purposes of the statute. See P.A.
03-242, § 1. Although this factual scenario would seem-
ingly implicate the ex post facto clause, as we already
extensively discussed in part I A of this opinion, § 54-
102g is not a penal statute. The statute does not there-
fore implicate the ex post facto clause.10 See Collins v.
Youngblood, supra, 497 U.S. 41. Accordingly, the defen-
dant cannot prevail on his ex post facto claim.
We observe that the courts of other jurisdictions that
have addressed this issue have all arrived at the same
conclusion, namely that statutes requiring convicts to
submit DNA samples do not contravene the ex post
facto clause, even when the underlying convictions pre-
cede the DNA collection statutes. See In re DNA Ex
Post Facto Issues, 561 F.3d 294, 299 (4th Cir. 2009) (‘‘the
DNA-sample requirement did not violate the [e]x [p]ost
[f]acto clause’’); United States v. Hook, 471 F.3d 766,
776 (7th Cir. 2006), cert. denied, 549 U.S. 1343, 127 S.
Ct. 2081, 167 L. Ed. 2d 771 (2007) (‘‘the DNA [statute]
does not operate retroactively to punish [the defendant]
for his original crime, but rather any punishment that
would ensue would be the result of new conduct, i.e.,
[the defendant’s] failure to comply with the DNA [stat-
ute]’’); Gilbert v. Peters, 55 F.3d 237, 238–39 (7th Cir.
1995) (‘‘[b]oth federal and state courts have uniformly
concluded that statutes which authorize collection of
blood specimens to assist in law enforcement are not
penal in nature’’); State v. Bain, Docket No. 2008-286,
2009 WL 170109, *1 (Vt. January 14, 2009) (‘‘federal and
state courts across the country have uniformly held
that statutes requiring prisoners or convicted felons to
provide DNA samples do not violate the federal ex post
facto clause, even when the convictions of the persons
being asked to provide samples occurred before enact-
ment of the statutes’’); see also United States v. Coccia,
598 F.3d 293, 297–98 (6th Cir. 2010); Johnson v. Quan-
der, 440 F.3d 489, 502–503 (D.C. Cir.), cert. denied, 549
U.S. 945, 127 S. Ct. 103, 166 L. Ed. 2d 255 (2006). This
court has also arrived at the same conclusion in the
context of other statutory schemes. See State v. Fara-
day, supra, 268 Conn. 198–200 (defendant’s revocation
of probation did not implicate ex post facto clause
because revocation was due to acts distinct and sepa-
rate from defendant’s underlying criminal convictions);
State v. Kelly, supra, 256 Conn. 94 (requirement to regis-
ter as sex offender is regulatory and does not violate
ex post facto clause).
As the regulatory nature of § 54-102g does not raise
any concerns in regard to the constitutional prohibition
on ex post facto laws, the defendant’s due process con-
cerns stemming from the application of a supposed ex
post facto law are therefore not an issue in the present
case. Accordingly, we conclude that the Appellate Court
properly upheld the trial court’s determinations that
§ 54-102g does not violate the ex post facto clause.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, EVELEIGH, McDONALD
and VERTEFEUILLE, Js., concurred.
1
We granted the defendant’s petition for certification, limited to the follow-
ing issues: (1) ‘‘Did the Appellate Court correctly determine that the state
may obtain a DNA sample from a felon in the custody of the Commissioner
of Correction who was convicted of crimes prior to the enactment of General
Statutes § 54-102g?’’; and (2) ‘‘Did the Appellate Court correctly determine
that prior to the passage of No. 11-144, § 1, of the 2011 Public Acts, which
amended . . . § 54-102g, it was permissible for the trial court to grant the
state permission to use reasonable physical force to obtain a DNA sample?’’
State v. Banks, 310 Conn. 951, 81 A.3d 1179 (2013).
2
All references herein to § 54-102g are to the 2009 revision of the statute
unless otherwise indicated.
3
Drakes’ appeal, also decided today, raises issues similar to those of the
defendant in the present case. See State v. Drakes, 321 Conn. 857, A.3d
(2016).
4
At the time of the state’s motion and the defendant’s refusal in March,
2010, refusing to submit to the taking of a DNA sample was punishable as
a class A misdemeanor. See General Statutes (Rev. to 2009) § 54-102g (g).
The legislature subsequently amended the statute to make the refusal to
submit to the taking of a DNA sample a class D felony, effective October
1, 2010. Public Acts 2010, No. 10-102, § 2; see General Statutes (Rev. to 2011)
§ 54-102g (g).
5
The defendant, however, did not submit a sample of his DNA at this
time. The trial court issued a stay delaying the enforcement of its decision
pending the resolution of the defendant’s appeal. See State v. Banks, supra,
143 Conn. App. 491.
6
General Statutes (Rev. to 2009) § 54-102g provides in relevant part: ‘‘(a)
Any person who has been convicted of a criminal offense against a victim
who is a minor, a nonviolent sexual offense or a sexually violent offense
. . . or a felony, and has been sentenced on that conviction to the custody
of the Commissioner of Correction 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. . . .’’
7
See United States v. Coccia, 598 F.3d 293, 299 (6th Cir. 2010); United
States v. Hook, 471 F.3d 766, 776 (7th Cir. 2006), cert. denied, 549 U.S. 1343,
127 S. Ct. 2081, 167 L. Ed. 2d 771 (2007); Johnson v. Quander, 440 F.3d 489,
502–503 (D.C. Cir.), cert. denied, 549 U.S. 945, 127 S. Ct. 103, 166 L. Ed. 2d
255 (2006); Jones v. Murray, 962 F.2d 302, 309 (4th Cir.), cert. denied, 506
U.S. 977, 113 S. Ct. 472, 121 L. Ed. 2d 378 (1992); Kruger v. Erickson, 875
F. Supp. 583, 589 (D. Minn. 1995), aff’d on other grounds, 77 F.3d 1071 (8th
Cir. 1996); People v. Travis, 139 Cal. App. 4th 1271, 1295, 44 Cal. Rptr. 3d
177 (2006); State v. Raines, 383 Md. 1, 30, 857 A.2d 19 (2004); Kellogg v.
Travis, 100 N.Y.2d 407, 410, 796 N.E.2d 467, 764 N.Y.S.2d 376 (2003); Sanders
v. Dept. of Corrections, 379 S.C. 411, 422, 665 S.E.2d 411 (2008), cert. denied,
2009 S.C. LEXIS 480 (S.C. February 20, 2009); State v. Bain, Docket No.
2008-286, 2009 WL 170109, *1 (Vt. January 14, 2009).
8
The defendant instead suggests that submitting a DNA sample should
be recognized as a punishment because taking the sample would be a search
and an intrusion under the fourth amendment to the federal constitution.
There is no support, however, for the defendant’s recasting of a fourth
amendment search as a punishment. To the contrary, courts have held that
actions generally are not punitive if they are minor and indirect in their
effect. See Smith v. Doe, 538 U.S. 84, 99–100, 123 S. Ct. 1140, 155 L. Ed. 2d
164 (2003); Hatton v. Bonner, 356 F.3d 955, 963 (9th Cir. 2004). The common
methods of obtaining a DNA sample—blood samples and buccal swabs—
are both widely recognized as not being intrusive or excessively burdensome.
See Winston v. Lee, 470 U.S. 753, 762, 105 S. Ct. 1611, 84 L. Ed. 2d 662
(1985) (‘‘society’s judgment [is] that blood tests do not constitute an unduly
extensive imposition on an individual’s personal privacy and bodily integ-
rity’’); United States v. Amerson, 483 F.3d 73, 84 n.11 (2d Cir.) (‘‘a [buccal]
swab can be taken in seconds without any discomfort’’), cert. denied, 552
U.S. 1042, 128 S. Ct. 646, 169 L. Ed. 2d 515 (2007).
We observe that the defendant does not raise a separate fourth amendment
claim in the present case. Rather, he argues only that the act of submitting
a DNA sample should be considered a punishment because it would also
constitute a search. At oral argument before this court, counsel for both
the defendant and the state acknowledged that the defendant was not raising
a fourth amendment claim in his appeal.
9
The defendant challenges the Appellate Court’s determination that
‘‘[g]iven the . . . importance of the objective to maintain a DNA data bank
. . . to implement the purpose of the data bank, it must be comprehensive.’’
State v. Banks, supra, 143 Conn. App. 505. The defendant argues that the
requirements of § 54-102g must be punitive because if the goal of the statute
is to create a comprehensive DNA data bank to assist in criminal investiga-
tions, then the only option for the legislature to effectuate its goal would
have been to enact an Orwellian statutory scheme that required every citizen
in Connecticut to submit a DNA sample rather than just those persons listed
under the statute. The defendant’s argument is meritless.
10
Given our conclusion that § 54-102g does not fall within the ambit of
the ex post facto clause by virtue of its nonpunitive nature, we need not
address the defendant’s claims regarding the retroactivity of the statute,
which are premised on the defendant’s theory that the statute is penal
in nature.