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Can Police Collect DNA from a Minor?

Posted by Dmitry Gorin | Oct 30, 2023

DNA collection has become a key to modern criminal investigations. It offers unparalleled precision and reliability, allowing law enforcement agencies to confirm or refute suspects' involvement in a crime with a high degree of certainty.

However, the issue of DNA collection becomes more complex when collected from someone under the age of 18 due to the ethical and legal considerations involved.

Can Police Collect DNA from a Minor?
California Assembly Bill 1584 says police can collect DNA from a minor under certain conditions.

With the passage of Assembly Bill 1584 (AB 1584), the State of California has implemented certain legal protections for minors by permitting the collection of DNA by law enforcement only under certain conditions.

California Assembly Bill 1584 says that if the police want to collect a DNA sample from a juvenile, they must first get the minor's and their parent's permission. AB 1584 was put into law by the California governor in September 2018, imposing other rules on collecting a minor's DNA.

For example, if a DNA sample was collected from a minor under the new law, and the sample did not implicate them in a crime, it must be destroyed within two years from the collection date or destroyed upon the minor's request.

Further, AB 1584 also prohibits a minor's DNA sample, collected by consent, from being analyzed or compared to profiles related to crimes other than the one for which it was taken.

Notably, there are some exceptions to the reasonably new law. One says that law enforcement can collect a DNA sample from a minor without consent if they have a court order or a search warrant. Another exception is when it is collected from a juvenile victim or suspected perpetrator of a sexual assault crime.

When Can Police Collect DNA from a Minor?

Under AB 1584, police can only collect a voluntary DNA sample from a minor when the following conditions have been met:

  • The minor has given their consent in writing;
  • The parents or legal guardians of the minor have also given their consent to the DNA collection after consulting with the minor;
  • The police have given the minor a form requesting the destruction of the DNA sample.

The bill also requires that before the DNA collection, the minor and their guardian must receive a clear explanation of the process, its purpose, and how the collected sample will be used, as well as the minor's legal right to refuse to give the sample.

As noted, if a minor provides a DNA sample, under Assembly Bill 1584, that sample must be destroyed upon a valid request by the minor or two years from the date the sample was given.

The sample will only be destroyed if it does not implicate the minor as a suspect in a crime. The sample can only be analyzed or compared to profiles for the specific case for which it was collected.

What Are the Restrictions on the Storage of a Minor's DNA?

AB 1584 also limits how long a minor's DNA may be stored once collected. The law requires that unless the minor's DNA sample specifically implicates them in a crime, the sample must be destroyed in the following situations:

  • Within two years of the collection of the DNA sample or
  • Upon written request by the minor.

Suppose a law enforcement agency is found to have collected DNA in violation of AB 1584. In that case, the agency can be liable to each minor whose sample was inappropriately collected. They could be fined $5,000 for each violation.

Why Does California Law Restrict the Collection of Minor DNA Samples?

AB 1584 balanced law enforcement's needs and minors' rights. It recognizes the value of DNA evidence in solving crimes and acknowledges the potential for misuse and abuse of such sensitive data, mainly when it involves minors. Among the concerns that led to these restrictions:

  • Invasion of Privacy: DNA does more than just reveal whether a person was present at the scene of a crime. DNA can reveal sensitive personal information such as medical conditions, family lineage, etc. This intrusion can be even more concerning for minors due to their age and vulnerability.
  • Potential for Misuse: DNA samples, once collected, can be stored and potentially used for purposes beyond the scope of the original investigation. This raises concerns about misuse or unauthorized access to such sensitive data.
  • Ethical Concerns: The DNA collection from minors raises ethical questions about consent and the ability of a minor to fully understand the implications of giving a DNA sample. By requiring parental consent, AB 1584 sets guardrails around the DNA collection process so law enforcement cannot easily manipulate minors to provide DNA samples without knowing the potential consequences.
  • Permanent Impact: The impact of having one's DNA collected and stored by law enforcement at a young age can have lasting consequences, including potential stigmatization and impact on future opportunities.

What Are the Exceptions to the Rule?

AB 1584 also lists four circumstances in which law enforcement is still legally allowed to collect DNA samples from minors without their express consent. These circumstances are:

  • A court order or search warrant authorizes them to do so. In other words, if the minor is suspected of a crime and the judge believes probable cause exists.
  • Law enforcement collects the DNA as part of a criminal investigation. For example, collecting DNA from the scene of a crime.
  • The DNA is collected to identify a missing or abducted minor
  • The minor is a suspected victim or perpetrator of a sexual assault. In such cases, the need to identify the perpetrator is considered to supersede the right of privacy for the minor.

Protecting Your Rights: Advice for Minors Accused of a Crime

Knowing their rights regarding DNA collection is essential for minors accused of a crime. They should remember that they can refuse DNA collection until their guardian has given written consent unless the police present a valid court order or warrant.

They should request clarification before volunteering a DNA sample if unsure about the process. Never volunteer a minor's DNA sample without consulting an experienced California criminal defense attorney to protect their rights. Contact our law firm for a case review. Eisner Gorin LLP is located in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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