Debating DNA Collection

• NCJ Number: 228383
• Journal: NIJ Journal Issue: 264 Dated: September 2009 Pages: 9-13
• Author(s): Sarah B Berson
• Date Published: November 2009
• Length: 5 pages
• Publication Series: NIJ Journal
• Agencies: NIJ
• Publication Type: Legislation/Policy Description

Annotation

This article examines State and Federal laws that authorize the collection of DNA samples from persons who are arrested but have not yet been convicted of a crime, as well as debates and court cases that have ensued from these laws.

Abstract

The Federal DNA Fingerprint Act of 2005 requires that, beginning January 1, 2009, any adult arrested for a Federal crime provide a DNA sample. The law also requires DNA collection from persons detained under the authority of the United States who are not U.S. citizens or are not lawfully in the country. Even before passage of this act, five States - California, Louisiana, Minnesota, Texas, and Virginia - had enacted laws that mandated collecting DNA from people arrested for various qualifying offenses. Although some States limit preconviction DNA collection to violent offenses or sex crimes, other States include all felonies; and some extend the requirement to misdemeanors. Variations among such State laws include the types of crimes for which samples are collected, applicability of the law to juveniles, and procedures for deleting DNA profiles. Some State laws have faced fourth amendment court challenges that focus on search and seizure issues. Courts have viewed collecting and analyzing DNA as a "search" in these challenges; however, the courts have not definitively settled the legal status of preconviction DNA sampling. Two States, Virginia and Minnesota have experienced challenges to their preconviction DNA collection statutes along this line of argument. The courts have come down on opposite sides of the issue, with Virginia's law held to be constitutional, and Minnesota's law held unconstitutional. Regarding the Federal law, in the first case of its kind a Federal judge in California ruled that it was constitutional to take a DNA sample at the time of arrest for a felony. 21 notes