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Police able to take DNA swab | Denver criminal defense attorney

Supreme Court ruling on DNA samples

Denver criminal defense attorney Doug Richard speaks out about the supreme court ruling to allow police to take DNA samples from people they arrest — a subject that touches on both civil liberties as well as criminal prosecution. Attorney Richards talks about his experience with the procedure as a former federal prosecutor.


“On June 3, 2013 the United States Supreme Court handed down a ruling allowing; or paving the way, for police officers to take a DNA swab from any person who’s been arrested.

Now, a DNA swab is not a very intrusive testing procedure for you as a practical matter. If you’re in custody they’re taking your photograph for booking photos; they’re taking your fingerprints, and they’re putting them in national databases.

The DNA swab, it’s not like they have to take any blood or anything from you. They take what looks like a little Q-Tip- It’s a long Q-Tip, and they put it on the inside of your mouth and then they send that, and that has your DNA on it. It takes just a few moments. It takes about as quick as it would take to fingerprint one of your fingers.

What this does, though, is allow the federal government to maintain a database of everybody’s DNA. So it can be a scary thing for people; especially as we look at our rights being taken away from us one at a time.

Normally, when I was a prosecutor, before this law came around, if I wanted to get someone’s DNA for purposes of an additional investigation and they were under arrest, they hadn’t been convicted of anything, they were just under arrest, I would have to get a court order.

We did that in certain situations, and what we had was a neutral and detached judge reviewing a Affidavit written by either, by an officer, maybe reviewed by a prosecutor, also, that, requesting the judge to order this person to give their DNA sample up.

If they didn’t they could be held in contempt of court or they could be held down and it could be done with force. Now, that sort of element of review of oversight has been removed. You have a police officer who gets to make the decision on their own whether someone who has been arrested for a crime that’s considered a serious or violent crime, and whether or not that needs to be done.

Does that mean that on a little, municipal court case where you’ve been charged with resisting arrest or obstruction, or maybe a municipal battery case? Does that mean that the officer then gets to take a DNA swab or is it only if it’s in a county court or in a district court?

Does it have to be a felony? What happens if it was just a DUI, and you have an officer who has experience with DUI’s where they think that DUI’s are violent crimes? Maybe they think that they’re intentional crimes. You know, I’ve heard a lot of officers and prosecutors describe drunk drivers as; it’s no different than walking down the street, pointing a gun and shooting blindly into the night, and they firmly believe that.

If you have somebody who thinks that way and they have somebody arrested for a DUI can they then take a DNA swab? I mean, so I think that right now, the Supreme Court has paved the way for police officers to have a lot more power and discretion than they normally would have.

So then the net effect of all of this is the police then have this database, and the prosecutors going to tell you that this is a fantastic thing, that they’re going to be able to solve all of these unsolved crimes from the past.

I’ve had plenty of clients that have been- that have found themselves in the cross hairs of something like this when they’re arrested for a small crime, and DNA is found or taken and they’re linked to another crime.

On the other side, as a prosecutor I was able to benefit from that; where I prosecuted people, and sure enough their DNA linked them to unsolved crimes. Specifically, and sometimes most troubling, rapes that had been unsolved for years. Now you’re finally able to put a name and a face to this awful event that happened in somebody’s life.
I think that the public is going to be, in general, conflicted about this, but what privacy have we given up in order to solves these crimes?

The dissenting opinion in the United States Supreme Court Case was very concerned with this, and they didn’t think that solving crimes was worth risking our privacy.
The other question is where is this information going to be stored? I mean, I don’t think that you can be living in this day and age when you haven’t received some letter from a bank or some institution stating that someone’s laptop was compromised and your information was on there: Including Social Security Number, bank account, credit card numbers. Don’t worry, though, it’s all safe, we’ve got it under control.

Imagine what’s going to happen now with your DNA. That’s a blueprint for you. For everything inside you. It’s not just what’s on your fingerprint or how you look, appear, but that’s a blueprint for your entire genetic make-up.

Having that sort of information stored: where is it going to be stored? Who is going to be responsible for having it stored? What are the sanctions if that information is released?

What happens if the Government wants to release that information, redact all of the names so it’s a blind study, but release it to different drug manufacturers so they can conduct tests on this DNA that you didn’t consent to them doing?

There’s a lot of questions that still remain and it’s very “brave new world,” I think, for us to now have a situation where DNA can be extracted from you at the discretion of a police officer without the intervention or oversight of a neutral and detached judge or magistrate.”