Know Your Rights: What To Do If The Police Asks For A DNA Sample


When the police investigate a crime, sometimes they’ll ask for a DNA sample to determine or rule out potential suspects.

Many law enforcement agencies across the country are beginning to use forensic DNA technology to help investigate and solve crimes, especially ones that have gone cold over the years. Using forensic DNA technology isn’t only a tool for investigating crimes, however. Defense lawyers have also turned to forensic DNA technology to help exonerate their clients.

With forensic DNA technology becoming an increasingly important tool for investigations, random citizens could be asked by law enforcement agencies to submit a sample of their DNA concerning a case, and you should know what to do if you will ever be asked for one.

The Origins Of Forensic DNA

It helps to know the context behind it forensic DNA technology that will give you a better perspective as to what forensic DNA is and how it grew to be an important tool for law enforcement agencies.

DNA stands for “deoxyribonucleic acid,” which is present in almost every living organism that gives an organism the instructions that are needed to develop, reproduce, and survive. According to History.com, in 1953, two Cambridge University scientists, James D. Watson and Francis H.C. Crick discovered that DNA could be chemically structured. That structure was the double-helix, a molecule that contains human genes. This discovery would later become the basis for forensic DNA technology for criminal investigations, being used to identify fingerprints on weapons and other small DNA details to help solve crimes.

It wasn’t until 35 years later that the first case using forensic DNA evidence would go to trial in the United Kingdom. In 1987, a 17-year-old British male was accused of raping and murdering two women. Forensic DNA evidence not only cleared the young man, but it also brought the actual criminal, Colin Pitchfork, to justice, becoming the first-ever criminal to be convicted using forensic DNA technology, according to Smithsonian Magazine.

This case proved to be a game-changer for judicial systems, especially in America, whom by the end of the 1980s were debating on whether or not to use DNA evidence as a means to prove a case in court. The British case proved that forensic DNA evidence could be sound and valid in cases. In 1989, the first American was convicted based on DNA evidence in a rape case.

In 1998, the Federal Bureau of Investigation (FBI) developed the National DNA Index System, which allowed law enforcement agencies across the country access to DNA profiles. It was around this time that forensic DNA grew to become a crucial part of criminal investigations.

There are many ways for a law enforcement agency to obtain your DNA, but the most common way law enforcement agencies can collect DNA samples is by buccal DNA that uses swabs from your cheek or your mouth to collect a DNA sample.

According to federal law, police and other law enforcement agencies can collect DNA samples from a person who has been arrested or charged with a certain crime. However, the rules surrounding what’s known as “pre-conviction DNA collection” varies by locale.

In some states, pre-conviction DNA is required for all felony arrests, while others limit this to certain felony crimes like sex crimes and other violent offenses. While most states will only ask for DNA samples from those suspected of committing a felony offense, in other jurisdictions, a DNA sample could be required for misdemeanor offenses such as traffic violations.

Most DNA samples are sent to the National DNA Index System and stored in a national database. Over the years, many state and local law enforcement agencies have compiled their databases.

There have been issues that have popped up in regards to DNA databases. According to a report from ProPublica, the federal standards surrounding the use of DNA swabs don’t apply to local police databases that have formed their own forensic DNA units.

In 2012, the state of New York before the first in the country to require a collection of DNA from anyone convicted of any crime. In the years that followed, other states passed laws that required a DNA sample to be taken mostly for those under arrest on felony charges. The eligibility requirements to submit a DNA test can vary greatly. In the ProPublica story, the police department in Greensboro, North Carolina only gets DNA samples from suspects arrested or connected to certain crimes. However, in Branford, Connecticut, the police can ask someone for a DNA sample just if they see someone acting strange.

With such a wide variation in the use of forensic DNA technology for investigative purposes, it is important to know the rights you have if you’re ever in the position of being asked to give a sample of your DNA to the police.

Know Your Local Laws

This tip is pretty straightforward. Knowing your local laws surrounding DNA samples can go a long way in knowing if you have the right to waive consent to one.

You should always have your Miranda Rights read to you before answering any questions and submitting to a DNA test. Miranda Rights are the right to stay silent until you have an attorney to speak on your behalf. If asked to provide a DNA sample, make sure your Miranda Rights are read before you consent.

Not Sure If You Have To Consent? Ask

In most states, giving your DNA sample to the police is voluntary. but sometimes, the people who are asked for one don’t know that.

Just because a law enforcement officer requests a DNA sample from your doesn’t mean it’s required, though in certain felony cases, it could be. So before you give your consent, ask if giving your DNA sample is a requirement, especially if you’re not under arrest. More often than not, it’s not required, but police departments across the country have been trained to convince people that nothing bad will come of submitting a sample if you waive your rights.

Know your rights, and don’t commit to a DNA test if you don’t have to.

Is It A Good Idea To Give The Police Your DNA Sample?

Normally, when a police officer asks you to supply a sample of DNA, officers will make you feel as if you’re doing it for your “best interest.”

While your DNA sample can indeed prove to be useful in ruling you out as a suspect in their investigation, there can be other worries with giving the cops a DNA sample that you may not know about. One major issue is that law enforcement agencies won’t destroy your DNA sample and will instead insert your profile into a DNA database.

This is problematic because your stored DNA can come back to be used against you in a future crime that could result in your arrest. Forensic DNA technology has proven to be very useful in solving cold cases, which may be one of the reasons why police agencies much prefer to hang on to your DNA instead of destroying it.

The fact that your genetic identity could be stored long-term by a law enforcement agency should be in the back of your mind if you’re ever presented with the choice to waive your rights and provide a DNA sample. Ae up a DNA sample if you’re placed under arrest and charge again, in most states, it’s mandatory to give for a crime, but if you are not in that position, know that you have the option not to give up your DNA, and criminal attorneys will strongly recommend that you refuse to give one.

If Your DNA Is Taken, Know You Can Expunge It

While law enforcement agencies will keep a DNA sample and profile in their databases nearly forever, there is a way you can legally request to have your sample destroyed and profile erased.

You’ll have to go through an expungement process, much in the same way to get a criminal record sealed. In some states, the destruction of a DNA record is automatic if no cases are linking to it, but in most states, you’ll have to request to have your DNA sample destroyed.

One thing that you’ll have to keep in mind is that even though the sample will be destroyed the profile could still be stored in police databases. What that means that, in addition to having the sample destroyed, you’ll also have to seek to have your DNA profile expunged as well.

There are several ways you can qualify for expungement, with the most common ways being no probable cause for an arrest, the charges being dismissed, or you’re found not guilty of a crime.

If Possible, Draw Up A Contract

If you’re ever in a situation where the police are asking you for a DNA sample, draw up a contract if it’s feasible.

Make sure that the contract details that your DNA sample and profile should not be used for any purpose outside of the investigation the police are requesting it for. As established earlier, law enforcement agencies that take DNA samples store profiles in databases. Those databases come in handy for police departments to make headway in solving colder cases. Making sure that your DNA profile isn’t used for future cases is essential to ensuring that your DNA profile won’t be used against you in potential future investigations.

In addition to ensuring your profile won’t be stored in a database, write out that the physical sample of your DNA will be destroyed once you’re ruled out as a suspect and cannot be in the possession of a law enforcement agency for longer than 30 days. Ensure that your DNA profile is erased from their database as soon as the case is closed.

Include in the contract that failure to live up to the terms in the contract will resort to a monetary penalty for the law enforcement agency taking your DNA sample. Granted, some agencies will resent signing such an agreement, but contacts could be necessary to protect your DNA sample and profile from being used against you for outside cases. Case in point: A contract should be drawn up to ensure your genetic privacy.

For many, forensic DNA technology has become another worrying concern for citizens in relations to law enforcement

For most states, the only time a DNA sample will be required of you is if you’re arrested and charged with a crime, much like a bail bond agent will require you to go to court to fulfill a bail agreement. Even if you’re not facing arrest, the police will still try to persuade you in submitting a DNA sample for their investigation, giving off the aura that it is a requirement for you to do so. The short answer: It isn’t.

Understand that it is your right to not submit to a DNA sample if it’s voluntary, and in most states, you won’t face criminal penalties for refusing to submit one, even though this can vary from state-to-state. There is another reason why it’s important to know your rights when asked to submit a DNA sample. Law enforcement agencies won’t tell you that a DNA sample is voluntary if you’re not being arrested or charged for a crime, leading you to think that because the police are asking for one that you have to give them a sample.

Just as you have the right to not self-incriminate yourself, those same rights extend DNA test requests. Always ask if it’s voluntary for you to submit a DNA sample. If so, ensure that the sample you’re providing to the police won’t be stored so that your genetic identity will be safe and won’t be used against you in the future or released to other entities such as a bail bond company to determine if you’re a flight risk.

If you are arrested for a crime, you still have rights regarding your DNA sample and profile. You have the right to have your DNA sample destroyed and profile expunged if you meet certain requirements. Not long ago, forensic DNA technology wasn’t as big of a part of law enforcement as it is now. With so many agencies using DNA to solve crimes, more-and-more will be asked of the public to submit a DNA sample, even for misdemeanors.

It is always important to know your rights, especially when it comes to your genetic identity. Forensic DNA technology can be a great tool for clearing the names of innocent people, but it also has the potential to be misused. Make sure that your DNA doesn’t fall prey to nefarious actions.

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