Defense attorneys cheer DNA sampling decision

Kristine Kolar, chief public defender for the 9th Judicial District, said, “This is being considered a very important victory for public defense.”

Prosecutors argue the decision unnecessarily takes out of the hands of law-enforcement officials a valuable tool for bringing perpetrators to justice.

Ramsey County attorney Susan Gaertner said the opinion was contrary to a national trend that is “accepting” of arrestee databases.

“(Minnesota) is really bucking the trend,” she said. “This decision is an unfortunate stumbling block.”

Specimens collected

Under a Minnesota law passed as part of the Omnibus Public Safety Finance Bill in 2005, law-enforcement personnel were directed to take biological specimens from juveniles and adults who have had a probable-cause determination on a charged offense but had not been convicted.
Under the law, if the person is found not guilty, the Bureau of Criminal Apprehension is required to destroy the specimen taken; if the charges against the person are dropped, upon request, the BCA must also destroy the specimen. The BCA is also required to remove the person’s information from the BCA’s combined DNA index system.

The Court of Appeals found the law violated the Fourth Amendment to the U.S. Constitution and Article 1, Section 10, of the Minnesota Constitution. The privacy interest of a person who has been charged with a criminal offense but not convicted is not outweighed by the state’s interest in taking a biological specimen from the person for purpose of DNA analysis, the court reasoned.

Rights preserved

Defense attorneys think the decision is an important step in preserving individual rights and privacy.

“It was heartening to read,” 3rd Judicial District Chief Public Defender Carol Weissenborn said. “It preserves the presumption of innocence.”

Criminal defense attorneys contend that the statute’s requirement that individuals against whom charges were dismissed request removal of their DNA from the database was unrealistic.

The DNA is destroyed only if the defendant initiated the request, Weissenborn explained.

“The onus was on the individual,” she said.

Many individuals who’ve given DNA samples after an arrest don’t even know they can have it removed if charges are dropped, Kolar said.

“Once your name is in the database, it’s difficult to get it out,” she said. “People have to have the savvy to initiate it and the ability to initiate it.”

As law enforcement becomes more technical, Weissenborn said, it’s more important to avoid the possibility that technology will “swamp the rights of ordinary citizens.”

“The statute didn’t make sense,” she said. “It’s long been understood that invading the body and taking DNA – is invasive, and it’s a search.”

Invasiveness challenged

Prosecutors dispute the degree of invasiveness involved in taking a DNA sample from an individual.

Assistant Washington County attorney Richard D. Hodsdon, who represents the Minnesota Sheriff’s Association, said the procedures for collecting and analyzing DNA had advanced over the years.

“It seems as if the court doesn’t have a good comprehension of the evolution of biomedic samples,” he said.

Some prosecutors contend that obtaining a DNA sample is really no different than fingerprinting or taking a booking photo, which is done as a matter of course following an arrest.

There is no objection to taking fingerprints as part of the booking process, Hodsdon said.

“That is not protected as a Fourth Amendment search,” he said.

Taking a photo of someone’s distinguishing marks, like tattoos for example, may actually be more intrusive than taking a DNA sample, Hodsdon said.

“A DNA swab is minimally intrusive,” he said.

According to Gaertner, the American Bar Association has come out with new DNA standards that approve of arrestee databases. She also said the federal government allowed collection of DNA samples, and more and more states were going in that direction as well.

Ernest Hunt

About Ernest Hunt

Ernest Hunt is a 35-year-old intern at a law firm who enjoys spreading right-wing propoganda, extreme ironing and cycling. He is kind and reliable, but can also be very pessimistic and a bit grumpy.
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