Written by attorney Gilberto Benito Vega

When Can My DNA Be Taken By The Police and What Are My Rights Under California Law?

  1. What is the Court's authority for taking my DNA without my permission? In 1998, California passed the "California DNA Identification and Forensic Data Base and Data Bank Act. In 2004, this act was amended to allow for the taking of DNA samples of all persons arrested for felonies based upon probable cause (or though the issuance of an indictment from a grand jury). This was codified as Penal Code Section 296 (a)(2)(c). This act was challenged in federal court and a three judge panel from the Ninth Circuit unanimously upheld the act and found it was not a violation of a defendant's Fourth Amendment right to be free from unreasonable searches. (2012 WL 589469 (9th. Cir. Feb 23, 2012)). In practical terms, this means that any person arrested for a felony, based upon probable cause, will have the inside of their checks swabbed for the purpose of collecting DNA samples. These samples will be stored and checked against a database of collected rape kits and other DNA evidence taken from involved crimes. 2. What if I am eventually found not guilty of the offense or the case against me is dropped? While the California act itself does not have an automatic mechanism which called for the destruction of the DNA sample in these situations, there are two possibilities which will allow for the removal of your DNA from this database and force the State to destroy it. The first is by request from the criminal defendant themselves. This can be made through any Superior Court of California under the authority granted by the penal code. (see Pen. Code Sec. 299(a)). The key requirement under this statute is that the petitioner (Person seeking the expungement) have to past or present offense or current charge against them. (Pen. Code Sec. 299(b)). For example: if you are charged with a felony burglary or a residence (which would call for the collection of DNA after a lawful arrest) and the charges reduced to a misdemeanor to which you enter a plea of no contest or guilty, then you would not be eligible under Penal Code Sec. 299. Alternately, if the felony against you is dropped entirely, but you have a prior DUI from several years ago, this you also would not be eligible for relief under Penal Code Sec. 299. The second method of relief, which was recently granted through the Supreme Court of the Untied State's decision in Maryland v. King, 596 U. S. ______ (2013), decided June 3rd, 2013. This decision held that when a defendant is lawfully arrested, a DNA swab, performed at a police station is comparable to the taking of the defendant's finger prints or photograph during the booking process. Additionally, the court also held that the swab sample may not be added to or checked against the data base until the defendant is arraigned properly for the felony. The Court also held that if the defendant is found not guilty, or the felony case dismissed, then the sample moist be destroyed and its information removed from the database. In this order lies the automatic mechanism that is not present on California's Penal Code. Lastly, the Court's decision did not address the issue of whether the sample must be destroyed and the information removed if the immediate felony is dismissed but the defendant has prior criminal convictions. Most likely, California's current policy, discussed above, will allow for the retainer of the sample despite a finding the current felony charge is untrue. 3. Can I force the State to perform DNA testing in order to clear my name if I am charged with an offense I did not commit? Yes. In Richardson v. Superior Court, the California Supreme Court held that the defendant can make a written request to the court in order to have their DNA tested and have that evidence admitted in order to held the defendant's case. (Richardson v. Superior Court (2008) 43 C4th 1040, 1053, Pen. Code Sec. 1405(m)). The main requirement the defendant would have to meet in order to have their DNA tested and admitted into evidence is that the DNA is necessary as to the identification of the true perpetrator. (Pen. Code Sec. 1405(m)). 4. Can I have a court test my DNA even after I was convicted or plead no contest to a crime? Yes. Similar to the above situation, The Richardson court also mentioned this is permitted. However, the court also stated that there must be a showing by the defendant that there is a reasonable probability that the trial verdict would have been more favorable to the defendant had the DNA evidence been admitted earlier. (Richardson, 43 C4th at 1051, Pen. Code Sec. 1405(f)(5)).

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