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Do I Have to Submit to DNA Testing?

Getting arrested for a crime in Oakland or the East Bay is a frustrating experience. As part of the arrest, the suspect can be handcuffed, treated forcefully by police, finger-printed, and photographed. For some suspects, an arrest for a felony may also require giving a DNA sample. A felon's DNA may be collected for a felony arrest and other criminal convictions. 

If you do not want the police to collect or store your DNA information, you should act quickly to fight the criminal charges and avoid a felony conviction. If you are facing felony criminal charges in the East Bay, talk to an experienced California criminal defense attorney about your rights and legal defense options. 

When DNA May Be Collected

In 2004, California voters passed Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act. The new law expanded state laws for the collection and use of criminal offender DNA samples. Generally, a felon's DNA sample can be collected when: 

  • The felon is newly convicted of, or pleads guilty to, a felony offense;
  • The felon is required to register under Penal Code Section 290 sex offenses or arson due to commission or attempted commission of a felony or misdemeanor offense;
  • The felon is housed in a mental health facility or sex offender treatment program after being charged with any felony offense; or
  • The felon is an adult and is arrested for any felony offense.

An adult felony arrestee generally has their DNA sampled as part of the booking process. When the suspect is being fingerprinted and photographed, the police can also take a DNA sample. DNA is generally collected with a cheek swab. Refusing a cheek swab is a misdemeanor offense, which could result in additional fines and jail time. Police officers are authorized to use "reasonable force" to collect DNA database samples. 

The DNA samples are stored in a database that can be accessed when DNA evidence is collected at a crime scene. DNA samples can also be used in a national DNA database, for searches by federal law enforcement and law enforcement in other states. 

Rapid DNA Testing

In 2017, the Rapid DNA Act was passed in California. The Rapid DNA Act allows a suspect's DNA sample to be developed within 90 minutes and then uploaded directly to the FBI's Combined DNA Index System (CODIS). 

Is DNA Tested As Part of a Drunk Driving Arrest?

For most drunk driving arrests, a breath sample will be taken but not a DNA sample. Most drunk driving arrests are misdemeanors that do not fall under the DNA sampling offenses. However, a felony drunk driving arrest can require a DNA sample. 

There are a few different ways a DUI can be charged as a felony, including: 

A 4th drunk driving charge within a 10-year period can be charged as a felony. The lookback period in California is 10 years, so any DUIs that occurred more than 10 years ago are generally not included in counting multiple DUIs. A DUI after a prior felony DUI conviction can also be charged as a felony. The penalties for a felony 4th DUI include up to 3 years in prison, fines, and a suspended license of up to 5 years. 

When a drunk driving accident results in injury or death, the drunk driving charge can be treated as a felony. A bodily injury DUI is a "wobbler," which can be charged as a misdemeanor or a felony, depending on the circumstances. Mitigating factors that can help your DUI defense lawyer get the DUI reduced to a misdemeanor may include seeking substance abuse treatment or expressions of remorse and accepting responsibility.  

A fatal drunk driving accident can be charged as felony vehicular manslaughter or second-degree murder. Vehicular manslaughter can result in up to 4 years in prison, in addition to DUI school, license suspension, and fines. 

How Can I Have My DNA Sample Removed From the Database?

If you had your DNA sampled after an arrest, you may be able to get the DNA profile removed from the California Department of Justice, DNA Database (CAL-DNA). Under California Penal Code Section 299, "A person whose DNA profile has been included in the data bank pursuant to this chapter shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from the data bank program," if:

  • The person has no past or present offense or pending charge which qualifies for DNA sampling; and
  • There otherwise is no legal basis for retaining the specimen, sample, or profile.

If you qualify, you can petition the CAL-DNA program for expungement. If CAL-DNA receives sufficient documentation, the program will issue a response to the petitioner that the sample was destroyed or otherwise notify the petitioner.

Alternatively, Prop 47 allowed for reclassifying a number of felony offenses in California to misdemeanors. If an individual is eligible for Prop 47 reclassification, they may also be able to have their DNA sample removed from the database. Talk to your East Bay criminal defense attorney to find out if you are eligible to have your DNA profile removed from the state's database. 

Contact an Oakland DUI Defense Attorney

If you were arrested for a felony offense, the police may take a DNA sample. However, if you can avoid a conviction, win your case, or have your charges reduced to a misdemeanor, you may be able to have your DNA sample destroyed so it is no longer in the California DNA database. Talk to a criminal defense attorney as soon as possible after an arrest to understand your legal rights. 

East Bay attorney Lynn Gorelick has more than 39 years of criminal defense experience and understands the challenges involved in California felony cases. Contact a local criminal defense lawyer who understands defense strategies and plea bargain negotiations.

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