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Most people who have run-ins with the law will say that the experience was unsettling at best and terrifying at worst. Being accused of a crime by a police officer, coupled with being handcuffed and placed in the back of a police car, is an embarrassing and often overwhelming situation. Retaining the services of a criminal defense attorney following any arrest is critical to protecting a person’s rights. There is, however, an additional aspect to many arrests that many people do not know. Police do not have wait for a conviction, or even charges to be filed against a person, before collecting a DNA sample. In fact, they have the right to collect DNA from anyone arrested for a felony offense. This is an especially scary proposition given the recent passage of a proposed bill by the California Legislature that will allow rape victims to pursue charges against an alleged attacker up to 20 years after the incident. It would also entirely remove a limit for prosecuting child molesters by eliminating the current cut off that occurs when the victim reaches the age of 40 or ten years has passed since the date of incident. It is extremely hard to contest charges from so long ago, which makes understanding how DNA samples can be used and how to expunge them once collected are very important to preserving a person’s rights.

DNA Collection

As stated above, anyone arrested for a felony offense is subject to DNA collection by the police. Collection is typically taken via a mouth swab, and occurs when the arrestee is booked as part of the identification process. Collected DNA samples are then submitted to the state crime lab for processing and entry into the state database. Law enforcement agencies use this database to identify suspects by comparing an unidentified DNA sample collected from a piece of evidence with known DNA profiles in the database. Refusing to give a DNA sample is a misdemeanor offense punishable by a $500 fine and up to one year in the county jail. However, law enforcement is authorized to use reasonable force to collect sample if certain conditions are met. These include:

  • prior written consent of the supervising officer on duty;
  • efforts to obtain voluntary consent; and
  • a recording of the collection if the individual is taken from a prison cell.

Importantly, even if a person is acquitted or the charges dropped, the DNA profile remains in the database until that person requests an expungement.

Expungement of DNA Samples

Requests for expungement of a DNA profile from the state database and the destruction of the DNA specimen may be directly submitted to the California Department of Justice, DNA Database Program. California law states that a person is entitled to an expungement in the following situations:

  • no charges were filed following an arrest for a felony offense;
  • the felony charges were dismissed or the person was acquitted; and
  • the underlying conviction that gave rise to the collection of the DNA sample was reversed and the charges dismissed.

Requests for an expungement may also be made to the trial court in the county where the arrest occurred, and the court has discretion on whether to grant the request or not. Note that denial of a request for expungement is non-appealable. Consequently, these requests should be made under the advice of a criminal defense attorney to ensure they have the best chance of succeeding.

Talk to a Lawyer

If you were arrested for a criminal offense, talking to a criminal defense attorney as soon as possible is the best way to preserve your rights and to start building a strong defense to the charges. The Manshoory Law Group, APC represents clients throughout Los Angeles, and will fight for justice in your case. Contact the office for a free consultation. Attorneys are available 24/7 to assist you.

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