Under California law, police are required to collect DNA samples from anyone arrested on suspicion of a felony crime. California maintains a DNA database for felons and people arrested for felonies.
California voters passed Proposition 69, the "DNA Fingerprint, Unsolved Crime, and Innocence Protection Act, " to expand and modify state law regarding collecting and using criminal offender DNA samples and palm print impressions. Even if the person is never convicted or charged, the state may keep a DNA sample based on the arrest.
When someone is arrested and booked in California, the police generally gather much biographical and physical information, including identifying information like name and date of birth.
Police also gather physical evidence from a felony suspect, including a mugshot, fingerprints, and a DNA sample (cheek swab). Refusing to provide a DNA sample is a misdemeanor punishable by up to a year in jail and a fine of up to $500.
The law also allows police to use "reasonable force" to collect DNA samples from suspects. The DNA database is searchable by law enforcement. Since California's mandatory DNA sample law was enacted, hundreds of thousands of DNA samples have been gathered from arrest suspects.
As of January 2009, adults arrested for felony offenses are subject to DNA collection in California. Under the law, DNA samples are also collected from any person newly convicted of a felony or even a misdemeanor but have a prior felony record.
Also, anyone currently in custody or on probation, parole, or any other supervised release after conviction for any felony offense committed before November 3, 2004, and anyone currently on probation or any other supervised release for any offense with a prior felony record.
Mandatory DNA sample collection applies to both adults and juveniles. Notably, California's compulsory DNA sample law has faced many legal challenges. The courts have upheld the law as constitutional by ruling that anyone arrested on suspicion of a felony does not violate the Fourth Amendment.
DNA Submission - Quick Facts
- California has one of the broadest standards regarding DNA collection.
- After the passage of Prop 69 in 2009, anyone arrested on suspicion of a felony offense must submit a DNA sample for the database, whether they are ever convicted or charged with a crime.
- The Attorney General's Office, California Department of Justice, and other state and local agencies are responsible for implementing the law.
- Law enforcement agencies, district attorneys, the courts, correctional agencies, and mental health and sex offender treatment facilities will primarily enforce Prop 69.
- Proposition 69 was enacted to enhance the state's ability to solve crimes and prevent wrongful convictions.
- Prop 69 expands previous requirements of collecting DNA samples for convicted felons to almost any person arrested on suspicion of a felony offense.
- Cheek swabs can be taken by any law enforcement or corrections personnel or anyone trained to assist in swab sample collection.
- Collection of a DNA sample is common in sex crime investigations.
- The collected DNA samples are added to the Department of Justice's DNA databank.
- Privacy concerns highlight the need for strict oversight and stringent security measures in managing the DNA database.
- In 2011, a San Francisco state appeals court declared Prop 69 unconstitutional in the case of People v. Buza (2009).
- In 2018, California State Supreme Court upheld Proposition 69, allowing it to remain fully in effect.
What Does the Prop 69 Law Say?
Proposition 69, also known as the DNA Fingerprint, Unsolved Crime, and Innocence Protection Act, has been controversial since its implementation.
This legislation was passed to expand the state's DNA database, but it has stirred controversy due to its potential implications for privacy and civil liberties.
This legislation rationales that expanding the DNA database will allow law enforcement agencies to match DNA evidence collected from crime scenes to individuals in the database. This process aids in identifying and apprehending perpetrators, thereby solving crimes and preventing future offenses.
The text of Prop 69 says, "The people of the State of California do hereby find and declare that:
(a) Our communities have a compelling interest in protecting themselves from crime.
(b) There is a critical and urgent need to provide law enforcement officers and agencies with the latest scientific technology for accurately and expeditiously identifying, apprehending, arresting, and convicting criminal offenders and exonerating persons wrongly suspected or accused of crime.
(c) Law enforcement should be able to use the DNA Database and Data Bank Program to reduce the number of unsolved crimes substantially and to help stop serial crime by quickly comparing DNA profiles of qualifying persons and evidence samples with as many investigations and cases as necessary to solve crime, apprehend perpetrators, and to exonerate persons wrongly suspected or accused of a crime, and to identify human remains."
Which Crimes Require DNA Submission?
According to California Proposition 69, DNA submission is mandatory for people arrested for allegedly committing certain felonies, such as the following:
- Penal Code 187 PC - Murder (first and second-degree).
- Penal Code 192 PC - Voluntary manslaughter.
- Penal Code 273.5 PC - Felony corporal injury to a spouse.
- Penal Code 269 PC - Aggravated sexual assault of a child.
- Penal Code 290 PC - Felony sex crimes.
- Penal Code 207 and 209 PC - Kidnapping.
- Penal Code 215 PC - Carjacking.
- Penal Code 243 and 245 PC - Felony assault or battery.
- Penal Code 460 PC - Residential burglary.
- Penal Code 212.5 PC - Residential robbery.
- Penal Code 203 and 205 PC - Mayhem.
- Penal Code 206 PC - Torture.
- Penal Code 451 PC - Arson.
- Penal Code 11418 and 11419 PC - Terrorist activity.
- Certain misdemeanor offenses trigger mandatory DNA sample collection, such as misdemeanors requiring sex offender registration.
What is the Controversy Over the DNA Laws?
Prop 69 is a significant departure from prior law because it treats people as if they are already convicted rather than "innocent until proven guilty." Thus, there has been considerable controversy and court challenges attempting to overturn the law.
People who support the law argue the following:
- Proposition 69 enhances the ability of police to solve crimes and prevent wrongful convictions.
- Expanding the DNA database allows detectives a better chance to match DNA evidence collected from crime scenes to people in the database, thereby identifying and apprehending perpetrators.
- The DNA database has played a vital role in exonerating wrongfully convicted individuals.
People who oppose the law argue the following:
- Privacy rights and potential misuse of DNA information.
- The broad collection of DNA samples from people arrested but not convicted infringes upon civil liberties and privacy rights.
- DNA samples could be contaminated or mixed up with another person.
- Concerns over genetic discrimination, where DNA information could be potentially exploited for purposes beyond law enforcement.
- Concerns over the security of the DNA database, such as whether adequate safeguards are in place to prevent data breaches.
Who Manages the DNA Information?
The Department of Justice's DNA databank manages the collected DNA data. They follow strict protocols to ensure the security and confidentiality of the information.
Access to the DNA database is limited to authorized law enforcement personnel. Still, there is potential for breaches or misuse of DNA information.
Tight security measures and oversight must be in place to prevent unauthorized access or misuse of the DNA database. Routine audits and harsh penalties for misuse or unauthorized access must be enforced to maintain public trust and confidence in the system.
There is a process for getting DNA samples removed from the database. Under the law, never-convicted people can have their DNA samples removed or destroyed. However, DNA samples are not automatically removed if the suspect is never charged or convicted. Contact our California criminal defense lawyers at Cron, Israels & Stark in Los Angeles, CA for additional information.
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