Criminal Defense: Can The Police Take a Sample of My DNA?
On June 30, 2013, Governor Scott Walker signed into law substantial changes to Wisconsin’s statutes governing the extraction and use of Deoxyribonucleic acid (“DNA”) information from people forced into the criminal justice system. These recent changes in the law raise interesting policy issues such as to what extent does our interest in apprehending and punishing criminals justify law enforcement intrusions on our bodily integrity and genetic privacy? This issue is particularly thorny because the law now authorizes law enforcement to obtain a DNA sample from a person who has merely been arrested. Is this new law a good or bad thing for our community? Like most of our compelling policy issues there are strong arguments on both sides. To put the policy debate in the proper context, a brief discussion of DNA evidence and a history of the law is probably helpful.
DNA resides in nearly every cell in the human body. Simply stated, DNA molecules contain the genetic instructions for all living things, including humans. The forensic use of DNA relies on several key facts. First, each person (except for identical twins) has a unique sequence of DNA molecules. Second, our DNA does not change over time. Third, the DNA sequence is the same in every tissue and fluid throughout the person’s body. Given these three major features, DNA evidence has quickly become the “gold standard” in forensic science and is used frequently in state and federal law enforcement investigations.
Prior to Governor Walker’s most recent changes to the law, Wisconsin law allowed the warrantless extraction of DNA only from persons who have been: (1) convicted of any felony; or (2) convicted of one or more limited number of misdemeanors; or (3) convicted of corresponding juvenile offenses; (4) persons found not guilty by reason of mental disease or defect of certain crimes; and (5) persons found to be sexually violent.
Under the old law, if a person met any of the five criteria above, the police would be able to lawfully “extract” a DNA sample. Typically, the police officers extract the specimen either by a pin prick of the fingertip to obtain a blood sample or by an oral swab to obtain a saliva sample. The oral swab is essentially a long q-tip that is swabbed against the inside of a person’s mouth. Once the police obtain the DNA sample it gets sent to the state crime lab for analysis. The crime lab analysts will analyze the specimen and develop a DNA profile. The DNA profile can then be loaded into various databases and cross matched against known DNA profiles developed in criminal investigations.
he new law expands law enforcement’s ability to obtain a DNA sample (and lessens our ability to object to government bodily intrusions) in three major ways. First, the new law instructs law enforcement officers that they must obtain a DNA sample from all persons merely arrested for a felony even if they are juveniles. The Wisconsin Department of Justice (“DOJ”) recently estimated that approximately 25,000 people per year are arrested for but not ultimately convicted of a felony.
Second, the new law requires extraction and analysis of the DNA of any person found guilty of a misdemeanor. This includes the most minor of crimes such as driving with a revoked license and disorderly conduct. The DOJ estimated that this will result in extraction and analysis of an additional 40,000 samples per year.
Finally, the law states that even if a profile is erroneously entered into the data bank, such an error “does not prohibit the legitimate use of the entry to further a criminal investigation or prosecution: and is a not ground for challenging the validity of the sample. Simply put, once the government has the sample it can pretty much do with it what it wants.
Whether the new law produces its intended effect of apprehending criminals and making our communities safer remains to be seen. Opponents of broader collection of DNA claim that the adding of arrestee profiles to the data banks has not significantly increased the rate of matches to crime scene data. This is true because the vast majority of arrestees do not commit the types of crimes for which DNA evidence is found or collected at the crime scene. Although television shows like CSI are entertaining, they present a very distorted and glorified view of the capabilities of forensic science in law enforcement investigations. In the vast majority of state court criminal prosecutions, DNA testing and analysis is not possible or the results of such testing are inconclusive.
If the broader collection of DNA is not producing any tangible results, is the government’s warrantless intrusion into our bodies justified? Proponents of the law stress that DNA evidence has solved some previously unsolved serious crimes. In addition, advocates of broader DNA collection assert that the more DNA profiles loaded into the data banks the greater the ability to quickly clear innocent suspects and exonerate those wrongfully accused or convicted. Finally, proponents view the intrusion into the body during the extraction process as a relatively minor procedure that is substantially outweighed by the increased possibility of solving a gruesome unsolved crime.