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9th Circuit affirms constitutionality of DNA swabs after arrest

Did you know that if you are arrested for a felony here in California, law enforcement can take a sample of your DNA? Did you also know that this sample is then entered into a criminal database where it is stored indefinitely, even if you are not convicted of a crime?

If you answered no to either of these questions then you’re not alone. It’s a potentially problematic issue in the California justice system that was recently argued against by the American Civil Liberties Union in the 9th Circuit Court. On behalf of arrestees across the state, the ACLU contended that the practice might be considered unconstitutional. But despite their arguments, the three-judge appeals panel affirmed the law, pointing to a similar Supreme Court decision as the reason for their decision.

Citing Maryland vs. King as the basis for their ruling, the judges claimed that the practice of taking DNA samples upon arrest is akin to taking fingerprints and is therefore part of the booking process. But members of the ACLU Northern California branch disagreed, pointing out glaring differences between how California collects and stores the DNA information compared to Maryland. And although the court tried to justify its verdict by saying that arrestees may request that their DNA information be expunged, ACLU members say this is where the problem lies.

According to the ACLU, around 300,000 people are arrested in California each year for felonies. Of those, only about a third are convicted. And while it’s true that they can apply for expungements -- and only about 100 have -- many people do not know that they have this right or even how to apply. More still may lack the financial means to hire a lawyer to help them.

Although the ACLU may have lost this most recent appeal to the 9th Circuit Court, they have stated that they will amend their complaint and hopefully receive an injunction from a lower district court to stop the state from at least taking samples from those accused of minor crimes.

Source: The Los Angeles Times, “Court upholds practice of swabbing individuals for DNA upon arrest,” Maura Dolan, Mar. 20, 2014

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Former Criminal Prosecutor With Proven Results