Can the police force me to give a DNA sample?

DNA testing is being used more and more in the legal system as the technology becomes better and more accepted. It is widely accepted that DNA comparison is the most accurate evidence available and is being used with the assumption of near certainty. In fact, many Innocence Projects around the country are using DNA testing to exonerate convicted defendants, even when the convictions occurred years before. The catch-22 for suspects is the DNA evidence also can be used to tie them to other crimes and possibly to prior, unsolved, criminal incidents.

Supreme Court Ruling on Forced DNA Sampling

This is exactly what happened in Maryland v. King, a case decided by the United States Supreme Court June 3, 2013. In that case, the Defendant, Mr. King, was arrested for menacing and forced to provide a DNA sample. DNA samples are collected by taking a swab of a person’s mouth. This was a key factor in the court’s decision as the intrusion of the body (the swab of the person’s mouth) is minimal and virtually painless. The court concluded this is much different from a forced blood draw in which a needle must be inserted into a person’s skin. When the police tested Mr. King’s DNA, they were able to tie him to an unsolved rape committed 6 years earlier. Mr. King argued it was an unconstitutional warrantless search. The Supreme Court, however, viewed the DNA collection differently. The Supreme Court looked at the collection more as a mode of identifying the suspect and collecting important information about his history, such as whether he might be a danger to others. The Court concluded identity information already is routine through booking photos, mugshots, and comparing fingerprints. It viewed the only difference as DNA has unparalleled accuracy.

The Court weighed the privacy interest of the suspect versus the legitimate governmental interest in collecting the DNA for the purposes of identification. The Court compared it to fingerprinting and suggested the only differences are DNA is more accurate and requires the slight intrusion of swabbing the inside of a person’s mouth versus the intrusion required to take a person’s fingerprint. The Court decided that a person’s privacy interest is diminished when he is taken into police custody and the government has a legitimate interest that outweighs the person’s privacy interest. Thus compelling a DNA sample upon arrest for certain violent crimes is constitutional.

Once a person’s DNA sample is collected, it is processed through the FBI’s Combined DNA Index System, or CODIS. Through CODIS, the suspect’s loci (the DNA sequence on a chromosome) are compared to other samples. The loci do not reveal any private medical information or genetic traits. Thus, the purpose of collecting DNA for identification purposes does not create an invasion of privacy.

Oregon Law on DNA Samples

In Oregon, any person convicted of a felony or certain misdemeanors is required to provide a DNA sample. In 2011, a bill (SB 881) was introduced in the Oregon legislature that would have required police to collect DNA samples upon arresting suspects of specific violent crimes, absent a few enumerated exceptions. This bill, however, died in committee before coming to a vote. Thus, in Oregon, under ORS 137.076, a DNA sample (blood or buccal) is required only in instances of a conviction of 1. a felony, 2. sexual abuse in the third degree or public indecency, 3. conspiracy or attempt to commit rape in the third degree, sexual abuse in the second degree, burglary int he second degree or promoting prostitution, or 4. murder.

Thus, police may not require a DNA sample upon arrest, but upon conviction of certain crimes, the court will order a DNA sample be collected.

Rob Crow
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Licensed to practice law in all State & Federal Courts in Oregon.
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