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Which Crimes Require DNA Submission?

Posted by Dmitry Gorin | Jan 15, 2024

Every state currently has laws on the books requiring those convicted of certain felonies to submit DNA samples to go into that state's crime database. Thirty states also have laws regarding pre-conviction submission of DNA, meaning defendants must submit samples even if they haven't been convicted. 

However, California law has one of the broadest (and most controversial) standards regarding DNA collection. As of 2009, thanks to the passage of Proposition 69 by California voters, anyone arrested on suspicion of a felony offense must submit a DNA sample for the database, whether they are ever convicted or even ultimately charged with a crime.

Which California Crimes Require DNA Submission?
Under Proposition 69, some California crimes require an arrested person to submit a DNA sample.

California voters passed Proposition 69, the "DNA Fingerprint, Unsolved Crime, and Innocence Protection Act," to expand and modify state law regarding collecting and using criminal offender DNA samples and palm print impressions.

It gives the Attorney General's Office, California Department of Justice, and other state and local agencies the responsibility of implementing the law.

The primary responsibilities for implementing Proposition 69 will be law enforcement agencies, district attorneys, the courts, correctional agencies, and mental health and sex offender treatment facilities regarding California's DNA database.

The text of Prop 69 says, “The people of the State of California do hereby find and declare that:

(a) Our communities have a compelling interest in protecting themselves from crime.

(b) There is a critical and urgent need to provide law enforcement officers and agencies with the latest scientific technology for accurately and expeditiously identifying, apprehending, arresting, and convicting criminal offenders and exonerating persons wrongly suspected or accused of crime.

(c) Law enforcement should be able to use the DNA Database and Data Bank Program to reduce the number of unsolved substantial crimes and to help stop serial crime by quickly comparing DNA profiles of qualifying persons and evidence samples with as many investigations and cases as necessary to solve crime, apprehend perpetrators, and to exonerate persons wrongly suspected or accused of a crime, and to identify human remains.”

What is California Proposition 69?

Proposition 69, also known as the DNA Fingerprint, Unsolved Crime, and Innocence Protection Act, has been a significant topic of debate since its implementation. 

This legislation passed with the primary objective of expanding the state's DNA database, has stirred controversy due to its potential implications for privacy and civil liberties. Proposition 69 was enacted with two main objectives: 

  • Enhancing the state's ability to solve crimes and
  • Preventing wrongful convictions. 

The Act achieves these goals by expanding the previous requirements of collecting DNA samples for convicted felons to virtually any individual arrested on suspicion of a felony offense. These collected DNA samples are added to the Department of Justice's DNA databank.

The rationale behind this legislation is that law enforcement agencies can match DNA evidence collected from crime scenes to individuals in the database by expanding the DNA database. This process aids in identifying and apprehending perpetrators, thereby solving crimes and preventing future offenses.

What Types of Crimes Require DNA Submission?

Under Proposition 69, DNA submission is mandatory for individuals suspected of committing felony offenses. The categories of crimes include:

  • Murder, including 1st and 2nd-degree murder (Penal Code 187 PC),
  • Voluntary manslaughter (Penal Code 192 PC),
  • Felony spousal abuse (Penal Code 273.5 PC),
  • Sexual assault of a child under 14 (Penal Code 269 PC),
  • Felony assault or battery (Penal Code 243 and 245 PC),
  • Kidnapping (Penal Code 207 and 209 PC),
  • Mayhem (Penal Code 203 and 205 PC),
  • Torture (Penal Code 206 PC),
  • Residential burglary (Penal Code 460 PC),
  • Residential robbery (Penal Code 212.5 PC),
  • Arson (Penal Code 451 PC),
  • Carjacking (Penal Code 215 PC),
  • Terrorist activity (Penal Code 11418 and 11419 PC),
  • Felony sex offense (Penal Code 290 PC).

What is the Controversy Surrounding California's DNA Laws?

Proposition 69 represents a significant departure from previous law because it treats those considered "innocent until proven guilty" as those convicted for specific felonies. This aspect has sparked considerable controversy, opposition, and even court challenges attempting to overturn the law. 

California's DNA Laws

Proponents argue that Proposition 69 enhances the ability of law enforcement agencies to solve crimes and prevent wrongful convictions. By expanding the DNA database, investigators can match DNA evidence collected from crime scenes to individuals in the database, thereby identifying and apprehending perpetrators. 

In addition, proponents state that the DNA database has been instrumental in exonerating wrongfully convicted individuals. 

Critics of Proposition 69 raise several substantial concerns about the law, primarily centered around privacy rights and potential misuse of DNA information. 

They argue that the broad collection of DNA samples from individuals who have merely been arrested but not convicted infringes upon civil liberties and privacy rights. Critics also express fears about genetic discrimination, where DNA information could be potentially exploited for purposes beyond law enforcement. 

Furthermore, there is apprehension about the security of the database, with critics questioning whether adequate safeguards are in place to prevent data breaches or unauthorized access. These concerns underscore the need for strict oversight and stringent security measures in managing the DNA database.

What Are the Legal Challenges?

Proposition 69 met its first legal challenge soon after it took effect. The case of People v. Buza (2009) revolved around a defendant who was arrested for arson and related felonies. 

When booking, he refused to provide the required DNA sample. As a result, he was convicted not only for arson-related crimes but also for the misdemeanor offense of refusing to give a DNA sample. 

Upon appeal, a San Francisco state appeals court ruled in favor of the defendant in 2011 and declared Prop 69 unconstitutional. However, in 2018, the California State Supreme Court upheld Proposition 69, allowing it to remain fully in effect. Still, the controversy continues, and most experts expect additional legal challenges to the law.

Who is Responsible for the Management of DNA Information?

The Department of Justice's DNA databank manages the collected DNA data, following strict protocols and safeguards to ensure the security and confidentiality of the information. Access to the DNA database is limited to authorized law enforcement personnel and is subject to legal restrictions.

Nonetheless, the potential for breaches or misuse of DNA information cannot be completely ruled out. Robust security measures and oversight must be in place to prevent unauthorized access or misuse of the DNA database. 

Regular audits and strict penalties for misuse or unauthorized access should be enforced to maintain public trust and confidence in the system. Contact our California criminal defense attorneys for more information or 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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