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Police Can Take DNA Upon Arrest for a Felony, California Court Rules

By Molly Zilli, Esq. on April 03, 2018 | Last updated on March 21, 2019

A little cheek swab may not seem like a big deal. After all, many of us readily submit to blood draws, vaccines, flu shots, detailed medical questionnaires, and the like. But the key there is that we submit to those things voluntarily. So, what happens when the state wants to collect your DNA against your will? In California, they already can, as long as you've been arrested for or convicted of a felony. And the state's highest court just upheld the constitutionality of this police practice.

The Voter-Approved Law

In 2004, voters approved Proposition 69 which said that any adult who is arrested or charged with a felony must consent to a DNA cheek swab. This applies even if the person is not actually charged with a felony, or if they are eventually acquitted. Their genetic profile is put in an offender database which can be searched by law enforcement for suspects in crimes, such as rape or other offenses where DNA was collected.

Fourth Amendment Protects Privacy

The Fourth Amendment protects us against unreasonable searches and seizures. Normally, in order to take someone into custody, take their blood, search their house, etc. the police have to have a warrant. Of course, there are many exceptions, but that's the basic idea.

Opponents of the law argue that allowing the police to take a DNA sample from anyone merely arrested for a felony goes too far. For one, they say it forces innocent people to allow their DNA to be kept in an offender database. They also argue that the program disproportionately affects the African American community.

In 2014, an appeals court in San Francisco decided that California's program violated the state constitution. However, this decision by the California Supreme Court reverses that ruling, allowing the program to continue. If the court had upheld the lower court's finding, other protections would have gone into law.

If you've been arrested but you're not sure if it's for a felony, or what your rights are, ask to speak to an attorney before you agree to anything.

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