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Are DNA Samples Required if I am Arrested in California?

Under California law, law enforcement in California is required to collect DNA samples from anyone arrested on suspicion of a felony crime. California maintains a DNA database for felons and individuals arrested for felony offenses. Even if the individual is never convicted or charged, the state may keep a DNA sample just based on the arrest.

Information Gathered After an Arrest

When an individual is arrested and booked in California, the police generally gather a lot of biographical and physical information from the suspect. This includes identifying information like name, aliases, and date of birth. Police also gather physical evidence from a felony suspect, including:

  • Photographs (mugshot),
  • Fingerprints, and
  • DNA sample (generally from a cheek swab).

Suspects can also be charged for refusing to let the police take a cheek swab. Refusing to provide a DNA sample is a misdemeanor offense, 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.

California maintains a database of this information, searchable by law enforcement. There have been hundreds of thousands of DNA samples gathered from arrest suspects since California's mandatory DNA sample law went into effect.

DNA Samples in California Arrests

As of January 1, 2009, adults arrested for any felony offense are subject to DNA collection in California.

Under the California Penal Code, DNA samples are also collected from:

  • Any person who is newly convicted/adjudicated of a felony offense, or who is newly convicted/adjudicated of a misdemeanor but has a prior felony record;
  • Any person currently in custody or on probation, parole, or any other supervised release after conviction for any felony offense committed prior to November 3, 2004; and
  • Any person 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.

There have been a number of legal challenges to California's mandatory DNA sample law. The courts have upheld the law as constitutional. A similar law in Maryland was upheld by the Supreme Court, with the court finding gathering DNA samples from individuals arrested on suspicion of a felony does not violate the Fourth Amendment.

Misdemeanor Conviction DNA Samples

Certain misdemeanor offenses also trigger mandatory DNA sample collection in California. This includes misdemeanors requiring sex offender registration, and individuals convicted of arson.

Why is DNA Collected After an Arrest in California?

DNA samples are gathered and used in investigating other crimes, where DNA was gathered at the scene of the crime but not matched up with a suspect. This is commonly used in sex crime investigations.

The DNA samples are collected and stored in a database. The DNA samples are also forwarded to a national database, where it can be accessed by federal law enforcement, and other state and local law enforcement.

California's law requiring DNA samples arrested for felonies was approved by voters in 2004. Prop 69 required a collection of DNA samples from all convicted felons, and from anyone arrested for certain crimes. The ballot measure passed with 62% voting yes. The ballot measure was supported with a large donation from Bruce Harrington, the brother of a victim of the Golden State Killer.

Problems with DNA Samples in California

There is no requirement that samples be taken by medically trained professionals. Cheek swabs can be taken by any law enforcement or corrections personnel, or anyone trained to assist in swab sample collection.

When the police or law enforcement officers do not follow the proper procedures for taking a DNA sample, the sample could be contaminated or mixed up with another person. This could result in someone being innocently accused of a crime.

Can You Get Your DNA Sample Removed or Destroyed?

There is a process for getting DNA samples removed from the database. Under the law, individuals who are never convicted can have their DNA sample removed or destroyed. There is no automatic removal of DNA samples if the suspect is never charged or convicted.

Generally, an individual who qualifies must provide documentation of his or her identity, legal status, and criminal history. This documentation is to be reviewed, and if the individual qualifies for expungement of his or her DNA sample, the sample will be destroyed.

Prop 47 Reduction and DNA Destruction

Some individuals may be eligible to have their DNA sample destroyed if they are eligible for reclassification under Prop 47. Prop 47 provides for reclassifying or reducing criminal sentences from a felony to a misdemeanor. Only certain offenses are eligible for a Prop 47 reduction. This includes primarily minor drug crimes or theft offenses.

Individuals convicted of a felony that is reclassified as a misdemeanor may be eligible to have their DNA sample destroyed. Talk to your East Bay criminal defense attorney about whether you can have your DNA removed from the state's database for a Prop 47 eligible offense.

East Bay Criminal Defense Attorney

Lynn Gorelick has more than 30 years of criminal defense experience defending her clients facing felony and misdemeanor charges in the East Bay. She understands how to approach the individual facts of each case for the greatest chance of success, keeping her clients out of jail and maintaining a clean record. Whether you are arrested in Oakland, Richmond or anywhere else in Contra Costa County or Alameda County, contact Lynn Gorelick today.

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