NEW Law: DNA Samples Taken Upon Arrest for All Felonies….Not Just Upon Conviction.

There is a new amendment to 1990 PA 250.

Previously, in an effort to establish a DNA profiling database, when one was convicted of a felony, the circuit court ordered a DNA sample be taken.  The sample collection is done through an “uninvasive” technique of an officer taking a simple skin cell swab from the interior of one’s mouth.  The amendment not requires the gathering of the DNA sample at arrest and not at conviction.

Under the 4th Amendment the US Constitution, one is free from unreasonable search and seizure of their person or things without a warrant based on probable cause.  A seizure of a person is an arrest; however, an arrest does not necessarily mean the government gets to search and seize property, except in limited situations, of someone upon arrest.   For instance, if one is arrested at work for an alleged crime, if the police want to go search that person’s home or order a blood sample be collected, it requires a warrant based on probable cause and proof of relevance.

Not in all felonies is DNA information relevant to the case and necessary for trial.  This rule makes relevance and proof irrelevant.

One has no choice.  It is a crime to fail or refusal to comply with the order to provide the sample.

As with any power given to a government, the first concern should be one’s reasonable expectation of privacy verses the need and right for governmental intrusion.  The second concern is misuse of the power.  While the law also make misuse, dissemination, and other acts by those in control a misdemeanor, how is that policed.

The gathering of DNA evidence has proven to be very useful for investigators in solving crimes across multiple jurisdictions; however, is the invasion into privacy justified prior conviction?  Time will tell as to how well this new law stands appellate scrutiny.