California criminal statutes have long allowed for the collection of DNA from those convicted of felony offenses, taking DNA from suspects accused of felony crimes is a fairly recent procedure, this week a CA appeals court stepped in to put an end to this practice? The facts of the case is as follows:

Appellant was arrested after setting a police car on fire. While confined in county jail and prior to any appearance before a judge, he refused to provide a DNA sample as required by the California DNA Act. A jury convicted him of felony offenses related to the arson and refusal or failure to provide a DNA specimen. An appeal followed. In a previous opinion, the Court of Appeal held that the seizure of a person’s DNA shortly after arrest violates the Fourth Amendment right to be free from unreasonable search and seizures and reversed appellant’s conviction for failure to provide a DNA specimen. The California Supreme Court granted review and remanded the case with directions to vacate the prior decision and reconsider the matter in light of Maryland v. King (2013) __ U.S. __ [133 S.Ct. 1958] [rejecting Fourth Amendment challenge to a Maryland statute requiring collection of DNA from arrestees charged with “serious crimes”].

Held: Conviction reversed. Like the Fourth Amendment, article I, section 13 of the California Constitution protects people against unreasonable searches and seizures. However, it provides greater protection of an arrestee’s privacy interests than the Fourth Amendment. The court here found that the arrestee provisions of the DNA Act are invalid under the California Constitution because the governmental interest in DNA testing at this early stage does not outweigh arrestees’ reasonable expectation of privacy in their DNA information. The Act allows DNA to be collected from arrestees who will never be charged or convicted of any crime and places the burden on the arrestee to pursue an onerous expungement process that is unreviewable. The DNA Act also intrudes upon the privacy interests of individuals who have not had contact with law enforcement because it does not prohibit familial searching, which uses an individual’s DNA profile and a profile in the DNA database to implicate a close biological relative as a possible suspect. (Courtesy CCAP)