The Police Can Test Your DNA Without a Warrant

Posted October 30, 2012 in Criminal Law by


Over the past decade, 26 states and the federal government have passed laws allowing mandatory DNA testing for anyone arrested for a felony – even individuals who are never charged or convicted. A number of states approve this procedure for certain misdemeanors, and sometimes even if the offender is a juvenile.

The results of these tests are uploaded to local, state and federal crime databases.


Does Mandatory DNA Testing Solve Crime?

Proponents say that the results are a valuable tool for investigating unsolved crimes and removing violent offenders from the general population.

A Maryland study identified 20 violent crimes that could have been prevented if DNA samples had been required for just three arrested individuals. A Colorado study identified 52 violent crimes, including three murders and 19 sexual assaults, which could have been prevented by DNA collection from just five arrested individuals.

Some law enforcement agencies hope to make DNA testing the primary form of identification, rather than relying on names, fingerprints or appearance – all of which can be changed over time.


Is Mandatory DNA Testing Constitutional?

Opponents of mandatory DNA testing claim that it violates the Fourth Amendment’s prohibition against unreasonable search and seizure. In most cases, no warrant is necessary. The law has been challenged, with conflicting results, in a number of state and federal courts.

In July 2012, Chief Justice John G. Roberts, Jr. wrote that there was “a reasonable probability” that the U.S. Supreme Court would address the issue this term and “a fair prospect” that it would uphold such laws.

The case before the Court involves a decision earlier this year by the Maryland Court of Appeals, the state’s highest court, which held the practice unconstitutional. In this case, a DNA sample taken from a man after his 2009 arrest on assault charges matched evidence from an unsolved rape. The state charged and convicted him based on the match.


Removing your data

If you have been arrested for a felony you did not commit and subjected to a DNA test, you can have your records removed from the database.

Only eight states offer automatic expungement of these records. In the remaining 17 states and at the federal level, arrestees must proactively contact authorities to ask that their records be removed from the database.


A Criminal Lawyer Can Help

The law surrounding mandatory DNA testing and arrests for felonies is complicated, and the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a criminal lawyer.


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