A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Maura Dolan, Los Angeles Times, December 3, 2014

A state appeals court decided unanimously Wednesday that California’s practice of taking DNA from people arrested for felonies–though not necessarily convicted or event charged–violates the state consitution.

The decision, handed down by an appeals panel here, is likely to be appealed to the California Supreme Court.

A three-judge panel of the First District Court of Appeal struck down a portion of a 2004 law passed by voters permitting the state to take and store DNA profiles from people arrested for felonies.

The U.S. Supreme Court has upheld a more limited Maryland law under the federal Constitution.

But Wednesday’s decision was based on the California Constitution, which specifically gives residents privacy rights.

“The California DNA Act intrudes too quickly and too deeply into the privacy interests of arrestees,” Presiding Justice J. Anthony Kline wrote for the panel.

“The fact that DNA is collected and analyzed immediately after arrest means that some of the arrestees subjected to collection will never be charged, much less convicted, of any crime,” Kline wrote.

In 2012, 62% of people arrested on suspicion of felonies in California were ultimately not convicted, and almost 20% were never even charged, the court said.

Unlike Maryland, California does not require DNA profiles to be automatically expunged if a person is not convicted.

California stores the DNA profiles in a database. People who are not convicted or charged must apply to have their genetic profiles removed, and “the expungement process is neither quick nor guaranteed,” Kline said.

Arrestees must submit a request to the trial court and the county prosecutor as well as to the state Department of Justice’s DNA laboratory to have their DNA profiles removed from the database, and courts may deny the requests.

“California places the burden on the arrestee to pursue an onerous judicial process which seemingly vests the prosecutor with power to prevent expungement merely by objecting to the request,” Kline wrote.

A similar challenge to California’s law being heard in federal court was put on hold Wednesday as a result of the state court ruling.

A spokesman for state Atty. Gen. Kamala D. Harris, whose office has defended the DNA law, said lawyers were reviewing the ruling.

Harumi Mass, a senior staff attorney at the ACLU of Northern California, which filed a friend of the court brief in the state case, praised the court’s decision for recognizing that “DNA is fundamentally differently from a fingerprint.”

“People who have never been charged with a crime should not have their DNA put in a government database,” Mass said.

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