Trending Topics

Calif. court upholds law that allows DNA collection upon arrest

The ruling upheld a provision that said any adult arrested or charged with a felony must consent to have his or her cheek swabbed for DNA


Sub. The California Supreme Court ruled Monday that people arrested on felony charges can continue to be swabbed for DNA so the state can place their genetic profiles in an offender database.

Mark Boster/Los Angeles Times/TNS

By Maura Dolan
Los Angeles Times

SAN FRANCISCO — In a blow to privacy advocates, the California Supreme Court decided 4-3 Monday that the state may continue to take DNA from people arrested for a felony crime.

The ruling upheld a provision in Proposition 69, approved by voters in 2004, that said any adult arrested or charged with a felony must consent to have his or her cheek swabbed for DNA.

Even if the arrestee were ultimately not charged or acquitted, the ballot measure required that the DNA profile would remain in the state’s offender database unless the person applied to have it expunged and a court approved the removal.

A majority of states collect DNA from some arrestees, and the U.S. Supreme Court has approved the practice. Privacy advocates, though, argued that California’s law was more extensive and invasive than DNA rules in other states.

Justice Leondra Kruger, an appointee of Gov. Jerry Brown, wrote Monday’s ruling. The court’s three more conservative justices joined her.

Brown’s two other appointees and a Democratic appointee on an appeals court dissented.

Kruger stressed the majority ruling was narrow, applied only to the facts of the case before the court. She said the DNA program for arrestees could still be challenged by someone else at a later date.

“We recognize that the DNA Act may raise additional constitutional questions that will require resolution in other cases,” she wrote.

The more liberal justices wanted the court to use the opportunity to strike down a DNA program they said affects thousands of innocent people each year, and disproportionately African-Americans.

Of the 200,000 to 300,000 people arrested in California each year on suspicion of a felony, about a third are either never formally charged or are acquitted.

Yet the genetic profiles of the vast majority of them remain in a DNA offender database and can be combed by law enforcement to search for suspects in crimes.

“The state’s retention of DNA is troubling not only because of its sheer magnitude but also because it predictably burdens certain groups,” Justice Goodwin Liu wrote in one of the dissents.

The majority decision overturned a 2014 decision by a San Francisco appeals court that found the DNA collection program for arrestees in violation of California’s Constitution.

That ruling prompted state lawmakers to pass a bill, signed by Brown, to limit the arrestee DNA provisions in the event that the state Supreme Court also agreed it was unconstitutional.

Because the court’s ruling did not upend Proposition 69’s requirements, the later law added protections for arrestees that will not now go into effect.

California’s program also has been challenged in federal court. In 2014, before the state appeals court decision, the U.S. 9th Circuit Court of Appeals upheld the arrestee DNA program under the U.S. Constitution.

California’s appeals court, ruling later that year, struck it down under the state Constitution, which specifically gives residents privacy rights.

©2018 Los Angeles Times