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DNA Collection at Arrest: Vital Crime Fighting Tool or Invasion of Privacy?

Would you feel your privacy rights were being violated if you had to submit a DNA sample upon being arrested? It's a debate hot button right now in Wisconsin.

If you are arrested for a felony or select misdemeanors should you automatically be subjected to having the police take a sample of your DNA? 

It’s a true hot-button issue and, recently, Wisconsin Attorney General J. B. Van Hollen wrote a column in which he argues that the state legislature should change the law to make this a reality.

In Wisconsin right now, when a court sentences somebody for a felony there is typically a requirement that that person be subjected to a DNA sample. Currently, if a DNA sample is ordered, the cost is covered by a DNA surcharge.

Clearly, there are other avenues where if somebody is a suspect in the case there can be a search warrant for a DNA sample. If there is probable cause to believe that the sample will somehow assist in determining whether the person was party to or somehow involved in a crime, the DNA is collected.  As a matter of principle, a person that is pulled over for a non-felony OWI, for example, is not subjected to a DNA sample. 

Typically, in my experience, a DNA sample is a swabbing of the mouth. In his column, the Attorney General writes, “With a simple swab inside an individual’s cheek to obtain a DNA sample, Wisconsin can do more to bring justice to victims and protect our citizens from offenders whose crimes have gone unsolved.”

I can certainly understand the thought process behind Attorney General Van Hollen’s proposal but what is not addressed here is that you are now, upon arrest, subjected to a warrantless search of your body by virtue of taking a DNA sample. That gets into a myriad of Fourth Amendment search issues as it relates to what is, without argument, the most protected search location that’s involved in the criminal justice system for being protected, your body, from unreasonable search and seizure.

We often hear about unreasonable searches of houses and vehicles. Here, we’re talking about a search of your bodily fluids.  This is a very highly protected

Fourth Amendment issue and I think there will be a lot of debate about whether it is sufficient by arrest alone to qualify for a DNA swab.

Bear in mind that not everyone who gets arrested is guilty of a crime.  The issue is that if somebody is arrested for a crime, their DNA will be available for the government to use in the future.  Is that reasonable in the big picture?  This is certainly debatable. People who examine such search issues may think that the fact that one bad guy gets off the street means that every person that gets arrested should be subjected to this.  That may be their thought process.

However, I have to believe that many other people believe this would be an intrusion into the sanctity of their bodies for what appears to be the goal of protecting everybody. This is not dissimilar argument-wise to the gun debate that is going on right now. Some people believe it’s a Second Amendment issue, that there shouldn’t be a database out there naming everyone who owns a gun. Others argue that such a database would serve the greater good.

Undoubtedly, there are plenty of victims out there who believe that if a person is arrested, collecting a DNA sample is fair game because that person may commit a crime in the future.  On the flip side, others will argue that even though I may have been arrested I still have a right to a presumption of innocence. Why, if I am presumed to be innocent, do the police get to take a sample of my DNA to put into a database for criminal justice purposes?

Personally, I cannot find a justification from a Fourth Amendment perspective to subject an arrested person, pre-conviction with no due process, to a DNA sample. I believe that with due process upon conviction it makes sense. But without due process and without some set of checks and balances other than just law enforcement arresting somebody, it becomes a very slippery slope.

Never mind all of the costs of maintaining such a database and the fact that the crime lab is so far behind right now it’s ridiculous, contrary to the assertions that were made during the Attorney General’s election that these backlogs will be rectified. More expense, more work and more backlogs are sure to follow.

From a legal perspective, the real nuts and bolts of the matter surround unreasonable intrusion into what we hold as the highest, most protected entity which is our body. I personally don’t agree with DNA collection upon arrest only. Undoubtedly, this debate won’t be going away any time soon.

About Attorney Mark Powers
Attorney Mark Powers is a partner at the criminal defense law firm of Huppertz & Powers, S.C. in Waukesha. Previously, Powers served as an Assistant District Attorney with the Waukesha County District Attorney's office and is currently serving as a municipal judge in North Prairie. He focuses in the area of criminal defense, and has handled many cases involving operating a motor vehicle while intoxicated, domestic disputes, and drug offenses.

Powers attended Valparaiso University School of Law, where he received his Juris Doctorate. Prior to law school, Mark attended the University of Wisconsin, Lacrosse where he received his bachelor of science in Political Science.

For more information, please call 262.549.5979 or visit  www.waukeshacriminalattorneys.com.

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

AWD February 06, 2013 at 05:08 PM
Democrats must spend, spend, spend, and spend. It’s in their DNA.
Frank McGruber February 06, 2013 at 06:11 PM
"No conviction does not necessarily mean no crime." Legally, it does for the person being accused. If they were not convicted, they didn't commit the crime. Legally. Now, we likely know otherwise, as evidenced by O.J Simpson. I'm fine with DNA evidence being taken from a suspect if a warrant is issued for it, but taken at arrest, no way. It's more invasive and personal than a fingerprint.
$$andSense February 07, 2013 at 12:20 AM
Well JACK, if you read Lyle's post, I postulate that wisdom comes with age and young people do not tend to think things through like those that have been around awhile. For those arguing that DNA is no different than fingerprints or blood samples being collected, think again. It is hard to fake someone's finger prints at a crime scene and blood used to only give a match on the type, not the person. Now they do the DNA on the blood. If I wanted to screw you over or anyone else for that matter, all I have to do is raid your trash can without your knowledge and find your used condom, hair, kleenex you blew your nose with or a napkin you wiped your mouth with, plant it at the site of a crime, and make an anonymous tip to the police that it was you. I guarantee they will swab you and bingo, you are in big trouble and will have some expensive attorney fees to get out of that one. But, if you are innocent, no worries, right? Do you trust the gummit as being flawless? That their databases cannot be hacked into? Hackers have gotten into the FBI, CIA and SS sites. I asked our local police chief about the DNA database and he said once they have your DNA, you are never getting it expunged because there are so many agencies that share and catalog it. Now get off your age deflection diatribe on the matter and deal with this one. Go get yourself voluntarily swabbed. Pronto. Be a person of conviction and principle.
$$andSense February 07, 2013 at 02:39 AM
OK Patch. Let’s try this again if you didn’t like my earlier comment you wouldn't post. I steal any kind of DNA evidence from some one’s trash can I do not like, plant it at a crime scene, and call the local PD anonymously to report the person I am trying to get indicted. They will be arrested and swabbed. They will pay enormous legal fees to extract themselves from “guilt”. This is my problem with non-convicted arrests. OK ? You get it now?
vocal local 1 February 07, 2013 at 10:27 AM
$$ANDSENSE, IF YOUR HAVING A PROBLEM WITH THE EDITOR OF THE WAUKESHA PATCH DELETING YOUR POSTS ON CONTENT CONTACT THE REGIONAL PATCH MANAGER FOR ASSISTANCE. PATCH EDITORS ARE TO FOLLOW THE PATCH NETWORK RULES NOT CREATE THEIR OWN. ALSO, HERE IS A LINK THAT MAY HELP YOU DETERMINE WHAT SHOULD AND SHOULD NOT BE ALLOWED. http://www.firstamendmentcenter.org/faq/frequently-asked-questions-press

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