DNA Collection upon Arrest
A new wave of legislation is sweeping across the nation with
nearly half of the states currently requiring the pretrial
collection of DNA samples from individuals who are arrested for
various crimes but not yet convicted. Collected DNA samples are
submitted to the Combined DNA Index System ("CODIS")
and are compared against other DNA profiles in CODIS. The states
listed below have enacted laws requiring arrestees to submit DNA
samples. However, the laws are not uniform among the states.
Several states, including Maryland and Tennessee require a
probable cause hearing prior to the DNA being loaded into a DNA
database. Some states, such as Alabama, California, and Florida
require DNA samples to be submitted if an individual is arrested
for committing any felony offense. Other states, including
Arizona, Maryland, and New Mexico require DNA samples to be
submitted only in cases where an individual is arrested for a
violent felony such as murder or sexual assault. Additionally,
state laws vary whether juveniles must submit DNA samples upon
arrest. Florida, Kansas, Louisiana, and South Carolina
specifically include juveniles while other states do not. The
relevant federal statutes are also listed below.
State Statutes -
click the links to access the statutes
Alabama Code § 36-18-24 (2009)
Alaska Stat. § 44.41.035
Arkansas Stat. Ann. § 12-12-1006 (2009)
Arizona Rev. Stat. § 13-610 (2009)
California Penal Code § 296.1 (2009)
Colorado Rev. Stat. § 16-23-103 (2009)
Florida Stat. § 943.325 (2010)
Kansas Stat. Ann. § 21-2511 (2009)
Louisiana Rev. Stat. Ann. § 15:609 (2009)
Maryland Public Safety Code Ann. § 2-504 (2009)
Michigan Comp. Laws § 750.520m (2009)
Minnesota Stat. § 299C.11, 105 (2009)
Missouri Rev. Stat. § 650.055 (2009)
New Mexico Stat. Ann. § 29-3-10 (1978)
North Carolina House Bill 1403 (2010)
amends N.C. Gen. Stat. § 15A-266.3a,
North Dakota Cent. Code § 31-13-03
Ohio Senate Bill 77 (2010)
modifying Ohio Rev. Code Ann. § 2901.07
South Carolina Code Ann. § 23-3-620
South Dakota Codified Laws Ann. § 23-5A-5.2, 5A-1 (2009)
Texas Government Code Ann. § 411.1471 (2009)
Tennessee Code Ann. § 40-35-321 (2009)
Utah Senate Bill 277 (2010)
modifying Utah Code Ann. § 53-10-403
Vermont Stat. Ann. Tit. § 20 1933
(2009), effective July 1, 2011
Virginia Code § 19.2-310.2:1 (2009)
U.S.C. § 14135a: Collection and use of
DNA identification information from certain Federal offenders
28 C.F.R. § 28.12 Collection of DNA samples
Challenges in the Courts
Several lawsuits have been filed in both state and federal
courts challenging the constitutionality of the above listed
statutes. The cases have resulted in conflicting outcomes.
California and Virginia state courts have upheld the
constitutionality of the laws in their respective states but a
Minnesota court declared its law unconstitutional. There is
similar discourse among the federal courts. The 9th Circuit Court
of Appeals affirmed a district court ruling upholding the
constitutionality of the relevant federal law but another
district court held the law to be unconstitutional. The United
States Supreme Court has not ruled on a case addressing the
constitutionality of a state or federal statute requiring the
extraction of DNA upon arrest. The Court has denied certiorari in
In 2009, the ACLU filed a lawsuit seeking to enjoin the
enforcement of California Penal Code § 296(a)(2)(C), which
provides for the mandatory DNA sampling of felony arrestees in
the State of California. The injunction was denied.
Haskell v. Brown, 677 F. Supp. 2d
1187 (N.D. Cal. 2009).
An Indiana Court of Appeals held that a cheek swab administered
pursuant to Ind. Code section § 10-13-6-10 in order to
obtain a DNA sample is "minimally invasive" and only
requires officers to have "reasonable suspicion," not
Garcia-Torres v. State, 914 N.E.2d
268 (Ind. Ct. App. 2009).
The decision was transferred and the opinion vacated. 919 N.E.2d
560 (Va. 2009).
In Brieger v. State, 2010 Ind. App. Unpub. LEXIS 1014, the
Court noted that the opinion in Garcia-Torres had been
vacated and held that taking a cheek swab amounts to a search and
is subject to the Fourth Amendment's probable cause and
A Minnesota Court of Appeals held that Minn. Stat. §
299C.105 amounted to an unconstitutional search in violation of
the Fourth Amendment to the United States Constitution and
Article I, Section 10, of the Minnesota Constitution.
In the Matter of the Welfare of: C.T.L.,
Juvenile, 722 N.W.2d 484 (Minn. Ct. App. 2006).
The Virginia Supreme Court held that taking an arrestee's DNA
sample pursuant to Code § 19.2-310.2:1 did not violate the
Fourth Amendment and analogized it to taking a suspect's
fingerprints upon arrest. The Court also held that the
presentation of DNA evidence did not violate the Sixth
Anderson v. Commonwealth of Virginia,
650 S.E.2d 702 (Va. 2007).
U.S. Supreme Court denied certiorari, 2008 U.S. LEXIS 4189 (U.S.,
May 19, 2008).
The United States Court of Appeals for the
9th Circuit held that forcibly extracting a DNA sample from a
detainee without a warrant, court order or reasonable suspicion
violated the Fourth Amendment.
Friedman v. Boucher, 568 F.3d 1119
(9th Cir. 2009).
The U.S. District Court for the Eastern
District of California held that "after a judicial or grand
jury determination of probable cause has been made for felony
criminal charges against a defendant, no Fourth Amendment or
other Constitutional violation is caused by a universal
requirement that a charged defendant undergo a 'swab
test,' or blood test when necessary, for the purposes of DNA
analysis to be used solely for criminal law enforcement,
U.S. v. Pool, 645 F. Supp. 2d 903
(E.D. Cal. 2009).
The United States Court of Appeals for the
9th Circuit affirmed the district court's ruling.
U.S. v. Pool, 621 F.3d 1213 (9th Cir.
In United States v. Mitchell, the
defendant challenged the constitutionality of the federal
arrestee statute that permits the pretrial collection of DNA. (42
U.S.C. § 14135a (a)(1)(A) and 28 C.F.R. § 28.12.) The
United States District Court for the Western District of
Pennsylvania disagreed with the District Court's analysis in
U.S. v. Pool, (645 F. Supp. 2d 903) and held that DNA
extraction "without independent suspicion or a warrant
unreasonably intrudes on such defendant's expectation of
privacy and is invalid under the Fourth Amendment to the United
United States v. Mitchell, 681 F.
Supp. 2d 597 (W.D. Pa. 2009).
Commentary and Other Resources
Law Reviews and
Corey Preston, Note, Faulty Foundations:
How the False Analogy To Routine Fingerprinting Undermines the
Argument for Arrestee DNA Sampling, 19 Wm. & Mary Bill of
Rts. J. 475 (2010).
Robert Molko, The Perils of Suspicionless DNA Extraction of
Arrestees underCalifornia Proposition 69: Liability of the
California Prosecutor for Fourth Amendment Violation? The
Uncertainty Continues in 2010, 37 W. St. U. L. Rev. 183
Erin Murphy, Relative Doubt: Familial Searches of DNA
Databases, 109 Mich. L. Rev. 291 (2010).
Derek Regensburger, DNA Databases and the Fourth Amendment:
The Time Has Come to Reexamine the Special Needs Exception to the
Warrant Requirement and the Primary Purpose Test, 19 Alb.
L.J. Sci. & Tech. 319 (2009).
Brian Gallini, Step Out of the Car: License, Registration, and
DNA Please, 62 Ark. L. Rev. 475 (2009).
John Maddux, Comment, Arresting Development: A Call for North
Carolina to Expand Its Forensic Database by Collecting DNA from
Felony Arrestees, 32 Campbell L. Rev. 103 (2009).
John D. Biancamano, Note, Arresting DNA: The Evolving Nature
of DNA Collection Statutes and their Fourth Amendment
Justifications, 70 Ohio St. L.J. 619 (2009).
Magazine and Internet Articles
ACLU Lawsuit Challenges California's
Mandatory DNA Collection at Arrest
Chris Asplen, Injunction Denied, Forensic Magazine,
Ken Wallentine, Collection of DNA Upon Arrest: Expanding
Investigative Frontiers, Police Chief, January 2010
Ronnie Garrett, DNA Saves, Law Enforcement Technology, February
Justice Department Finds DNA Collection From Arrestees Overloads
Backlog In Crime Labs, March 30, 2009
Peter Bibring, "Grim Sleeper" Case Doesn't Justify
Expanding the Reach of DNA Databases, July 25, 2010
ACLU Letter to Congress Urging Opposition to an Amendment to H.R.
5057 Pertaining to the Collection of DNA Samples from Arrestees,
July 14, 2008
U.S. to Collect DNA Samples from Arrested Immigrants, January 13,
Basak Otus, In Conn., Arrests May Require DNA Tests, September 9,
Gerald J. Turetsky, Albany's Deadly DNA Law, New York Post,
June 24, 2010
Paula R. Ward, Do DNA 'Prints' Invade Privacy?
Pittsburgh-Post Gazette, August 24, 2009
on Collecting DNA Upon Arrest
Chicago's Study on Preventable Crimes
Maryland's Study on Preventable Crimes
Washington's Study on Preventable Crimes
Denver's Study on Preventable Crimes
Jay Siegel and Susan D. Narveson, Why Arrestee DNA Legislation
Can Save Indianan Taxpayers $50 Million Per Year, January 2009
DNA Saves website
DNA Resource website
Denver District Attorney's website