State v. Banks
143 Conn. App. 485
Conn. App. Ct.2013Background
- Banks convicted 1997 robberies, kidnapping, and gun counts; sentenced to 15 years, in DOC custody since then.
- 2010: DOC directed Banks to submit a DNA sample; he refused.
- May 2010: state charged him with failure to provide a DNA sample under §54-102g(g) and moved to authorize use of reasonable force to obtain a sample.
- February 8, 2011: trial court granted the motion to use reasonable force, holding §54-102g applies to Banks and is regulatory; no retroactive impact on sentences.
- October 2011 amendment Public Acts 2011-144, §1 added explicit authority to use reasonable force; state’s motion was granted and upheld on appeal in AC 33326; separate conviction for refusing to provide a DNA sample under §54-102g(g) affirmed in AC 33387.
- Core issue: whether §54-102g is regulatory (not punitive) and whether its application, including use of force, is permissible against a felon in custody; court concludes statute regulatory, provisions harmonized, and amended language allows reasonable force when necessary to obtain a DNA sample.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court had subject matter jurisdiction to grant the motion | Banks (defendant) claims lack of jurisdiction | State argues §54-102g is regulatory; court may act | Yes; jurisdiction proper; statute regulatory and not sentence-altering. |
| Whether applying §54-102g to Banks violates due process or ex post facto | Banks argues retroactive/punitive effects violate due process and ex post facto | Statute regulatory; applied prospectively; penalties do not alter sentences | No for due process or ex post facto; statute regulatory and not punitive. |
| Whether §54-102g should be retroactively applied to Banks prior to P.A. 03-242 | Argues retroactive application | Refusal conduct occurred after amended law; not retroactive | Not retroactive as to Banks; conduct occurred after amendment. |
| Whether the statute authorizes the use of reasonable force to obtain a DNA sample | Statute silent on force; force not permitted | Legislature intended data bank; force implicit to collect samples | Yes; reasonable force authorized; necessary to achieve data bank goals. |
Key Cases Cited
- State v. Waterman, 264 Conn. 484 (2003) (Megan’s Law regulatory, not punitive; supports regulatory view of §54-102g)
- State v. Kelly, 256 Conn. 23 (2001) (Doe test for regulatory vs punitive; supports nonpunitive nature of the statute)
- Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997) (Second Circuit: regulatory nature of sex-offender registration statutes)
- Cobham v. Commissioner of Correction, 258 Conn. 30 (2001) (Jurisdiction upon beginning of sentence; regulatory vs sentencing actions)
- Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) (Test for determining punitive character of a statute under ex post facto law)