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You may be shocked—and perhaps even outraged—to learn that here in Los Angeles and throughout the state of California, law enforcement has the right to take a DNA sample from you if you are charged with a felony. They don’t have to wait for conviction: the arrest is enough. 

If you are convicted of a misdemeanor sex offense that requires you to be entered into the sex registry then law enforcement can collect your DNA under those circumstances, as well. 

How is the DNA taken?

The DNA is taken via cheek swab. Law enforcement is responsible for collecting it as soon as possible after your arrest. 

DNA collection is treated as part of the evidence collection process. 

Can DNA be taken from juveniles? 

Yes. According to the California Penal Code, §§ 295, 296, 296.1, law enforcement officers may collect DNA from any person, an adult or a juvenile, who is currently in custody or on probation, parole, or any other supervised release after a conviction for felony offense. 

They cannot collect DNA from juveniles who are merely being charged with a crime. 

Can the police collect a DNA sample from a suspect?

No. They would have to arrest you and charge you with a felony first.

It’s worth noting that prior convictions do not count. You can’t be asked to give up DNA for a misdemeanor arrest, even if you have a prior felony conviction. 

What happens if you absolutely refuse to provide the DNA? 

It’s a option, especially if you fear that the DNA might seal your felony case. You’ll be charged with a misdemeanor. That’s a fine of up to $500 and imprisonment of up to one year in county jail.

The law also authorizes a “reasonable” use of force to collect samples. All the police have to do is get authorization from a superior officer and make an effort to secure voluntary compliance. They must also video tape the collection. 

Given this fact it may not be worthwhile to attempt refusal. 

Has DNA collection been challenged in court?

Yes. In 2018 the California Supreme Court ruled in People v. Buza that neither the 4th Amendment of the Constitution nor similar laws against unreasonable search and seizure in the California constitution were violated by the collection of DNA evidence.  

Can my DNA records be expunged from the database?

Yes. You must provide sufficient documentation of your identity, legal status, and criminal history to the CA DoJ DNA Database program. If you are acquitted, if no charges were filed, if the charges were dropped, if the case was dismissed, or if your DNA was collected for a case for which you later completed a diversion program or a deferred entry of judgment, then you can get your DNA removed from the database. 

Is it possible to defend against DNA evidence?

There are some defenses which can be effective, especially if the police acted illegally when they arrested you, did not have probable cause, violated your rights, or made some other mistake. Failing that, we may be able to show that there are other explanations for the appearance of your DNA at a crime scene besides your participation in the alleged crime.

Either way, anyone who fears DNA evidence may link them to a felony desperately needs a dedicated private criminal defense attorney and not a public defender. It will take time, effort, and focus to make the best out of your case, and a public defender simply does not have the resources to offer that kind of dedication to any one case.

We do. Reach out to our office to get help today.

See also:

How Does Bail Work in Los Angeles? 

What Should You Do If There is a Warrant Out for Your Arrest in Los Angeles?

Am I Eligible for a Diversion Program in Los Angeles County?