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In Your Defense

Attorneys Matt Huppertz and Mark Powers are partners at the criminal defense law firm of Huppertz & Powers, S.C. in Waukesha.

Since beginning his career in 1982, Huppertz has argued before the Wisconsin Supreme Court five times and has lectured on the admissibility of DNA evidence in criminal cases.

Powers served as an Assistant District Attorney with the Waukesha County District Attorney's office as well as a municipal judge in North Prairie.

For more information, please visit www.waukeshacriminalattorneys.com.

DNA Collection at Arrest: Vital Crime Fighting Tool or Invasion of Privacy?

DNA collection, DNA and privacy, criminal defense attorney Waukesha, Huppertz & Powers

If you are arrested for a felony or select misdemeanors should you automatically be subjected to having the police take a sample of your DNA? 

It’s a true hot-button issue and, recently, Wisconsin Attorney General J. B. Van Hollen wrote a column in which he argues that the state legislature should change the law to make this a reality.

In Wisconsin right now, when a court sentences somebody for a felony there is typically a requirement that that person be subjected to a DNA sample. Currently, if a DNA sample is ordered, the cost is covered by a DNA surcharge.

Clearly, there are other avenues where if somebody is a suspect in the case there can be a search warrant for a DNA sample. If there is probable cause to believe that the sample will somehow assist in determining whether the person was party to or somehow involved in a crime, the DNA is collected. As a matter of principle, a person that is pulled over for a non-felony OWI, for example, is not subjected to a DNA sample. 

Typically, in my experience, a DNA sample is a swabbing of the mouth. In his column, the Attorney General writes, “With a simple swab inside an individual’s cheek to obtain a DNA sample, Wisconsin can do more to bring justice to victims and protect our citizens from offenders whose crimes have gone unsolved.”

I can certainly understand the thought process behind Attorney General Van Hollen’s proposal but what is not addressed here is that you are now, upon arrest, subjected to a warrantless search of your body by virtue of taking a DNA sample. That gets into a myriad of Fourth Amendment search issues as it relates to what is, without argument, the most protected search location that’s involved in the criminal justice system for being protected, your body, from unreasonable search and seizure.

We often hear about unreasonable searches of houses and vehicles. Here, we’re talking about a search of your bodily fluids. This is a very highly protected Fourth Amendment issue and I think there will be a lot of debate about whether it is sufficient by arrest alone to qualify for a DNA swab.

Bear in mind that not everyone who gets arrested is guilty of a crime. The issue is that if somebody is arrested for a crime, their DNA will be available for the government to use in the future. Is that reasonable in the big picture? This is certainly debatable. People who examine such search issues may think that the fact that one bad guy gets off the street means that every person that gets arrested should be subjected to this. That may be their thought process.

However, I have to believe that many other people believe this would be an intrusion into the sanctity of their bodies for what appears to be the goal of protecting everybody. This is not dissimilar argument-wise to the gun debate that is going on right now. Some people believe it’s a Second Amendment issue, that there shouldn’t be a database out there naming everyone who owns a gun. Others argue that such a database would serve the greater good.

Undoubtedly, there are plenty of victims out there who believe that if a person is arrested, collecting a DNA sample is fair game because that person may commit a crime in the future. On the flip side, others will argue that even though I may have been arrested I still have a right to a presumption of innocence. Why, if I am presumed to be innocent, do the police get to take a sample of my DNA to put into a database for criminal justice purposes?

Personally, I cannot find a justification from a Fourth Amendment perspective to subject an arrested person, pre-conviction with no due process, to a DNA sample. I believe that with due process upon conviction it makes sense. But without due process and without some set of checks and balances other than just law enforcement arresting somebody, it becomes a very slippery slope.

Never mind all of the costs of maintaining such a database and the fact that the crime lab is so far behind right now it’s ridiculous, contrary to the assertions that were made during the Attorney General’s election that these backlogs will be rectified. More expense, more work and more backlogs are sure to follow.

From a legal perspective, the real nuts and bolts of the matter surround unreasonable intrusion into what we hold as the highest, most protected entity which is our body. I personally don’t agree with DNA collection upon arrest only. Undoubtedly, this debate won’t be going away any time soon.

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