How Do I Remove My DNA Sample from the Government’s DNA Database?
In California, convicted felons must submit a sample of their DNA to the California Department of Justice’s DNA database.[i] The DNA sample simultaneously serves as a deterrent to future criminal activity and makes it easier to prosecute the person should he reoffend[ii].
Recently, though, the California Supreme Court upheld Proposition 69 (“Prop. 69”),[iii] a controversial law passed by voters in 2004 that requires the taking of a DNA sample from any person who is merely arrested for a felony offense[iv]. What’s more, refusing to provide a DNA sample is a separate crime itself, punishable by a $500 fine, up to 1 year in jail, or both jail time and a fine.[v]
Opponents of the law view it as an attack on the presumption of innocence: the taking of the DNA sample occurs once the arrestee is booked at the police station[vi] — which is before the arrestee has been found guilty and even before the prosecutor has determined that charges are warranted.
Critics of Prop. 69 also view it as an infringement on a person’s privacy. A person’s DNA sample can remain in the government’s database potentially indefinitely. The law does not require the destruction of an arrestee’s DNA sample,[vii] meaning that the government is free to use the sample when investigating other crimes[viii] — even crimes that occur years later — that are unrelated to the crime of arrest.
Nor does Prop. 69 outright prohibit familial searches,[ix] which is when police identify a criminal suspect by finding a match in the DNA database and then search the database for any of the suspect’s close biological relatives (such as a parent, a sibling, or a child). A match found in this way can be used to cast criminal suspicion on a suspect’s close relatives whose DNA profiles are also contained in the government’s database.
Nor does Prop. 69 protect against abuse by police. A less-than-scrupulous officer could conduct a felony arrest as a pretext to obtain a person’s DNA sample for use in the investigation of a separate, more serious crime.[x]
The issue becomes more problematic when, according to a 2012 study by the California Department of Justice, about 20 percent of felony arrestees (about 57,600 people) were never actually charged with a crime[xi] and about 30 percent of felony arrestees who were charged with a felony offense (roughly 118,000 people) were never actually convicted[xii].
Even though thousands of felony arrestees are never convicted of a crime, all of them are required to donate a biological sample to the government’s DNA database.
So, Is There a Way to Remove My DNA Sample from the Government’s Database?
Yes, so long as: (1) you are eligible to do so; and (2) the Court grants your request to do so.
If you were arrested but charges were never filed against you by the prosecutor, then you are eligible to remove your DNA sample so long as the statute of limitations (read: the deadline for prosecutors to file charges against you) has expired,[xiii] you’ve never been convicted of a separate felony crime[xiv], and you are not required to register as an arson or sex offender[xv].
If you were arrested and then formally charged with a felony, then to be eligible to expunge your DNA sample, your case must resolve in your favor — that is, your case must have been dismissed, you must have been acquitted by a jury, or you must have been found factually innocent of the charges.[xvi] Additionally, you must have never been convicted of a prior felony[xvii], and you cannot be a registered arson or sex offender[xviii].
If you are eligible to delete your DNA sample, the next step is to petition the Court to do so.[xix] The Court has absolute discretion to grant your request; meaning that if the Court denies your request, that decision will be unappealable and final.[xx] Only if your petition is granted will your DNA profile be removed from the government’s database.[xxi]
And what does D.N.A. stand for, Billy?
Do Not Assume innocent.
Conclusion
If you were arrested for a felony but never convicted, the government shouldn’t be able to keep a sample of your DNA indefinitely. If you would like to remove your DNA profile from the government’s database, Michael is available to help. Contact him at (714) 451-6834 to schedule a free initial consultation.
[i] [Penal Code §§ 295(b)(2)], 296(a)(1).
[ii] Penal Code §295(c).
[iii] People v. Buza (Cal. Supreme Court, No. S223698, at pages 15 and 40, opinion filed April 2, 2018.
[iv] Penal Code §296(a)(2)(C).
[v] Penal Code §298.1(a).
[vi] The DNA sample is taken via a swab from the inside of an arrestee’s cheek. Penal Code §§296.1(a)(1)(A), 295(e).
[vii] A person’s DNA sample will remain in the government’s database until the person can successfully petition the Court to have his sample removed from the database. Penal Code §§299(a), (b), (c)(2), (d).
[viii] Penal Code §299.5(k). An added danger of being in the government’s DNA database is the risk of having one’s DNA inadvertently transferred to a crime scene or victim.
[ix] Currently, when the California Department of Justice conducts a familial search, the Department’s policy is to cross-reference a DNA sample to the DNA profiles of convicted felons only — DNA profiles of felony arrestees are excluded from familial searches. Cal. DOJ, Div. of Law Enforcement, Information Bulletin-BFS-01; Cal. DOJ. Memorandum of Understanding, Familial Searching Protocol, Page 3, DOJ-FSC 6-14-11. Though the Department’s policy currently disfavors familial searches from including the DNA profiles of felony arrestees, nothing in Prop. 69 (Penal Code §295 et seq.) prohibits the Department from doing so should the Department decide in the future to change its policy regarding familial searches.
[x] People v. Buza (2014) 231 Cal. App. 4th 1446, 1489. See also Penal Code §299.5(k).
[xi] People v. Buza (2014) 231 Cal. App. 4th 1446, 1487, fn 24, citing Cal. DOJ, Division of Cal. Justice Information Services, Bureau of Criminal Information and Analysis, Criminal Justice Statistics Center, Crime in California 2012 at page 49.
[xii] People v. Buza (2014) 231 Cal. App. 4th 1446, 1496, fn 34, citing Cal. DOJ, Division of Cal. Justice Information Services, Bureau of Criminal Information and Analysis, Criminal Justice Statistics Center, Crime in California 2012 at pages 19, 49.
[xiii] Penal Code §299(b)(1).
[xiv] Penal Code §§299(a), 296(a)(1). A felony conviction includes a conviction for the attempt of a felony offense. Penal Code §296(a)(4).
[xv] Penal Code §296(a)(3).
[xvi] Penal Code §299(b)(1), (3), (4).
[xvii] Penal Code §§299(a), 296(a)(1). A felony conviction includes a conviction for the attempt of a felony offense. Penal Code §296(a)(4).
[xviii] Penal Code §296(a)(3).
[xix] Penal Code §299(c)(1). A copy of your petition must also be sent to the District Attorney’s Office as well as the California Department of Justice’s DNA Forensic and Identification Database and Databank Program. Penal Code §299(c)(1). Also, a hearing will be set if the District Attorney objects to the expungement of your DNA sample from the government’s database. Penal Code §299(c)(2)(D).
[xx] Penal Code §299(c)(1).
[xxi] Penal Code §299(c)(2).
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
