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The United States Supreme Court Sets Stage to Allow DNA Seizure for All Arrests

On Monday, June 3, 2013, the stage was set for the further erosion privacy rights. In a 5-4 decision, which Justice Antonin Scalia said will enable a dangerous expansion of police powers, the Supreme Court decided to allow police officers in most states to routinely take DNA samples of arrestees without a warrant, making the swabs as common as fingerprinting. MARYLAND v. KING, --- U.S. ---, --- S.Ct. ---, --- L.ED.2d ---(2013). The case involved the validity of Maryland's DNA seizure law, which is similar to the one made effective in New Jersey on February 1, 2013. While both the Maryland and New Jersey laws limit the states' right to collect DNA to arrestees charged with certain violent offenses (and require removal from state and federal databases unless there is a conviction), key language in the Supreme Court decision to uphold the Maryland law likely will lead to new laws in New Jersey and other states allowing the collection of DNA in all juvenile and adult arrests.

In the opinion, delivered by Justice Kennedy, the Supreme Court held that "a suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention. It is a common occurrence that '[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals. Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Police stopped serial killer Joel Rifkin for the same reason. One of the terrorists involved in the September 11attacks was stopped and ticketed for speeding just two days before hijacking Flight 93.'"

The New Jersey DNA Database Act.

Effective February 1, 2013, the changes to the DNA Database and Databank Act quietly went into effect. The amendments were signed into law on August 18, 2011. Under the amendment, all arrestees of certain violent crimes must give DNA.

The new law requires that every person arrested (adults and juveniles) for murder, N.J.S.A. 2C:11-3; manslaughter, N.J.S.A. 2C:11-4; aggravated sexual assault and sexual assault, N.J.S.A. 2C:14-2; aggravated criminal sexual contact and criminal sexual contact, N.J.S.A. 2C:14-3; aggravated assault of the second degree, N.J.S.A. 2C:12-1; kidnapping, N.J.S.A. 2C:13-1, luring or enticing a child, N.J.S.A. 2C:13-6; engaging in sexual conduct which would impair or debauch the morals of a child, N.J.S.A. 2C:24-4; or attempt to commit any of these crimes, must provide a DNA sample for purposes of DNA testing prior to release from custody. In addition, every juvenile arrested for an act which if committed by an adult would constitute one of these offenses must also provide a DNA sample prior to the juvenile's release from custody. Under the law, the law enforcement agency that affects the arrest for which DNA testing is required must collect a DNA sample from the arrestee prior to the arrestee’s release or incarceration.

The law provides that any individual whose DNA information has been included in the "State" DNA database "may" apply to the court for expungement under N.J.S.A. 53:1-20.25 on the grounds that all charges resulting from the arrest that provided the basis for inclusion of the person’s DNA information in the State database have been dismissed or resolved through an acquittal at trial. This right to expungement of DNA records differs from the right to expunge all other State criminal records under N.J.S.A. 2C:52-1 et seq. A copy of the application for expungement of DNA records must be served on the prosecutor not less than 20 days prior to the date of the hearing on the application. The law requires that a certified copy of the order of dismissal must be attached to an order expunging DNA information “insofar as its inclusions rests upon the arrest which resulted in those charges” (i.e., if the entry in the DNA database reflects more than one conviction or adjudication, that entry will not be expunged unless and until the person or the juvenile adjudicated delinquent has obtained an order of expungement for each conviction or adjudication). In other words, if other arrests or convicitons exist, the expungement request will be denied.

What is CODIS?

All DNA records obtained in the State of New Jersey are submitted to the national Combined DNA Index System (CODIS), controlled by the Federal Bureau of Investigation (FBI). The DNA Identification Act of 1994 (42 U.S.C. §14132) authorized the establishment of this National DNA Index. The DNA Act specifies the categories of data that may be maintained in NDIS (convicted offenders, arrestees, legal, detainees, forensic (casework), unidentified human remains, missing persons and relatives of missing persons) as well as requirements for participating laboratories relating to quality assurance, privacy and expungement.

CODIS is a software program containing a collection of data files that permit comparison of biological evidence recovered at crime scenes to DNA profiles of known offenders. The CODIS system has two main data files, referred to as indexes, to accomplish this task. The "Forensic Index" contains DNA profiles developed from biological evidence recovered at crime scenes, where the donor of the biological material is believed to be the perpetrator of the crime. The "Convicted Offender Index" consists of DNA profiles developed from known samples taken from qualified convicted offenders. Each individual state is charged with determining what crimes qualify for CODIS inclusion. The Forensic Index and the Convicted Offender Index are searched against each other, and investigative leads are generated. Additionally, the Forensic Index is searched against itself, whereby matches link crime scenes.

The New Jersey State Police oversee the CODIS laboratory in New Jersey. It receives and maintains the offender samples, sends them for analysis, verifies the analysis, and inputs the profiles into the CODIS system. The primary method of collecting DNA samples from convicted offenders is by buccal swab. The offenders are asked to swab themselves by inserting a disk-shaped foam stick applicator between their teeth and cheek and then placing it under their tongue for ten seconds. Once an offender's DNA sample is collected, it is logged into the Laboratory Information Management System by bar code at the New Jersey State Police laboratory, verified with the State Police Records and Identification Unit, and sent to the CODIS Compliance Unit for further verification, data entry, and tracking. After a DNA profile is generated and verified, it is entered into the State DNA Index System (SDIS), and then electronically uploaded to the National DNA Index System (NDIS). CODIS is comprised of NDIS, SDIS, and, if applicable, any Local DNA Index System (LDIS) for states with county or municipal labs. The CODIS Manager within the New Jersey CODIS Unit has the ability to remove any DNA profile entered into SDIS or NDIS if an offender's conviction is overturned and the charges dismissed.

The State's right to use CODIS is conditioned upon compliance with the DNA Identification Act of 1994 (42 U.S.C. §14132(d)(2)), which requires removal of the DNA if a person is not convicted. The new law, which allows DNA samples to be taken for arrestees, however, does not provide for automatic expungement of DNA records from CODIS. Rather, an arrestee must decide whether to apply for an expungement. Does this mean that New Jersey is at risk of losing access to CODIS? The answer is probably yes, but it remains to be seen what happens. Also, no Court Rules or procedure has been adopted for the new expungement procedure. (This paragraph was modified as of 5/1/13).

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