Currently, anyone arrested in California on suspicion of committing a felony is subject to having a DNA swab taken of them. The DNA contained on the swab is then entered into a national database, called the Combined DNA Index System (CODIS). The CODIS database system has helped to revolutionize criminal investigations, allowing law enforcement agencies around the country to exchange information, generate leads, and link crimes to known offenders.
Nevertheless, being charged with committing any crime, let alone a felony (which typically carries with it a prison term of at least one year), does not entail an elimination of every right an individual possesses and retaining the services of an experienced criminal defense attorney can help to ensure that not only are those rights not infringed but that the individual has a fighting chance to combat the charges against him.
Recently, the State of California was sued for its requirement that law enforcement agents not only collect but keep, the DNA profile of anyone arrested for a felony, regardless of whether that individual is ultimately convicted.
A discussion of the legal requirements for taking a DNA sample of an individual and circumstances in which the sample can be expunged will follow below.
California DNA Collection Law
As alluded to above, pursuant to California law, any adult individual arrested for any felony offense is subject to DNA collection in California.
Additionally, DNA samples may also be collected from the following individuals, regardless of age:
- An individual who is convicted and/or adjudicated of a misdemeanor, but who has a prior felony record;
- An individual currently in custody or on probation, parole, or another supervised release after a conviction for any felony offense which was committed prior to November 3, 2004; and
- An individual is currently on probation or any other supervised release for any offense with a prior felony record.
Additionally, individuals convicted and/or adjudicated of various misdemeanor offenses may also have a DNA sample collected. These offenses include convictions for arson, and any misdemeanor offense requiring sex offender registration.
What is DNA Expungement?
Upon request to the California Department of Justice (CADOJ), certain individuals may be eligible to have their DNA expunged. If granted, the DNA sample will be destroyed, and any record of it, or the information contained within the record, would be unavailable for search through either the State database or CODIS.
The following individuals are eligible for DNA expungement:
- Individuals who have had no charges filed against them;
- Individuals who provided a DNA sample due to an arrest for a felony, but the prosecutor choose to file misdemeanor charges instead;
- Individuals who have had their matters dismissed were found not guilty, or have had a Court of Appeal overturn their conviction;
- Individuals who successfully completed a diversion or deferred entry of judgment program; and
- Individuals who were found factually innocent of the underlying offense.
If the CADOJ denies an individual’s request to expunge his/her DNA, that individual may petition a judge to do it. An experienced criminal defense attorney can help fight for removal.
Speak to a Criminal Defense Attorney
If you have been charged with a felony, contact the criminal defense attorneys at Manshoory Law Group, APC as soon as possible. The attorneys understand the stress and consequences you face and will work to prepare the most effective defense to counter the charges against you.
Attorneys are available 24/7 to take your call. Contact our attorneys for a free case analysis.
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