A California appeals court recently decided that California’s practice of taking DNA from people arrested for felonies violates the state constitution. California has been taking DNA from people even if there are not convicted or even charged with a crime.
When a person is arrested on suspicion of committing a felony, the state collects the DNA profiles using a cheek swab and stores the profiles in a database. And these profiles do not have to be expunged if the person is not ultimately convicted. Instead, those who are never charged with a crime or not convicted must apply to have their profiles removed.
Not surprisingly, this process is not quick. Persons must submit a request to the trial court, the county prosecutor, and the California Department of Justice’s DNA laboratory to have their DNA profiles removed from the database. Courts may deny the request.
The state has argued that it needs this information to confirm an arrestee’s identity much like fingerprints. But a suspect is usually identified by the time the state gents the sample processed, which generally takes up to 30 days.
The defendant in the case, Mark Buza, was arrested for setting a police car on fire and convicted for arson and vandalism. After he refused to allow the police to take a DNA sample from him when he was arrested, he was convicted for “refusal or failure to provide a DNA specimen.” He was sentenced to six months in county jail.
The appellate court found the real purpose of the state’s practice was to investigate a crime—a crime committed either by the defendant or a family member. This amounted to a “warrantless search”—which is illegal. The judges were troubled by the fact that DNA contains much more information than a simple fingerprint and that the state could keep this information forever. This violates the California Constitutions right to privacy.
Unfortunately, the court did not issue an order that the practice be stopped immediately. If you have any questions about DNA testing after being arrested, call Ozols Law Firm today for a free consultation. Hiring a qualified criminal defense attorney can be an important step in protecting your rights.
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