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DNA bill likely to pass despite concerns

Measure would let officials collect DNA after a person’s arrest

POSTED: February 26, 2014 12:50 a.m.

In a 5-4 decision, the Supreme Court last year gave states the authority to collect DNA before suspects are convicted, and Georgia may do so.

A bill to authorize that passed the state Senate, and was given court approval to move to a House vote. But when distrust of government is running high across party lines, some find the idea hard to stomach, legal experts said.

“There’s not a whole lot of trust right now with personal information,” Gainesville attorney John Breakfield said. “Some people may say, ‘At what point is it going to be a national registry for DNA?’

“When you talk about DNA, it’s very personal and considered a part of your body,” he added.

Citing the then-pending court case, the Georgia legislature last year tabled Senate Bill 135, which would have required collection of DNA upon arrest for anyone charged with a felony.

The proposed legislation represents an increasing trend toward databasing and cross-matching DNA information from criminal defendants. A 2011 Georgia law expanded collection to all felonies post-conviction. Previous statutes allowed collection only on certain felonies, mostly sex-related.

Sen. Butch Miller, R-Gainesville, who co-sponsored the bill, said he was comfortable the Supreme Court’s decision in Maryland v. King had addressed concerns about constitutionality.

“Our bill is much narrower than the Maryland bill, so there shouldn’t be a problem with our bill at all,” he said.

Breakfield said justices deemed the practice an identifier, rather than a search, in rejecting the Fourth Amendment argument.

“The Supreme Court ruled it’s not a search at all, so you’re not really getting into the reasonableness of it,” he said.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,” the amendment reads.

District Attorney Lee Darragh said DNA collection is akin to a fingerprint, and is both a “constitutional and wise” practice.

“The collection of DNA at arrest is no more intrusive upon the arrestee than being fingerprinted, which has been routine for decades,” he said.

The practice yields investigative breakthroughs, Darragh added.

“Crime scenes don’t always yield fingerprints, but DNA is fairly frequently found at scenes and from victims,” he said. “The DNA collected from convictees has often yielded convicting evidence from cases long since considered ‘cold.’ The collection of DNA at arrest will increase this number of such cases for the benefit of victims and society in the fight against crime.”

Miller also cited its success in criminal cases.

“There have been a number of high-profile cases over the last few years since DNA, science and technology has come into its own where people were acquitted or people were convicted based on this field of evidence,” he said. “It’s just technology and science in our everyday life.”

But Justice Antonin Scalia, siding with more liberal Justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg, asserted that because tested and stored DNA was effective and applicable for purposes of criminal investigation — a benefit freely admitted — the intent of DNA collection is a search, and thus unconstitutional.

Circuit Public Defender Brad Morris agreed, and said executing DNA collection across the board for felony arrests would be “concerning.”

“I think it’s terrible. At a time when people supposedly are opposed to having more government, we’re having more and more laws where technologically and scientifically they’re invading in the most inner sanctum of an individual, that being their DNA,” he said. “Just the idea that any person who is presumed to be innocent who is arrested, they’ll take their DNA sample to be kept on government record ... is really scary.”

Miller said privacy concerns regarding hoarding of personal information are without merit, and that the information would be discarded after being checked across the Georgia Bureau of Investigation’s database.

“If it doesn’t match up, or they’re released or found not guilty, or any way the case ends, then that information is destroyed,” he said. “There’s no archive of data. If it doesn’t match, it’s destroyed. If they’re acquitted, it’s destroyed.”

Morris said there are already ways to get DNA if the standard of proof is there.

“We already have a mechanism about getting a warrant to get people’s DNA. Go before a judge; have a warrant; show probable cause and relevance,” he said.

The bill’s sponsor, Sen. Josh McKoon R-Columbus, said 28 states have adopted the practice.

But Morris, and others in opposition, say just because the Supreme Court has authorized Georgia to pass the law doesn’t mean the state should.

“The old saying is that, ‘Bad facts make bad law,’ and occasionally you can find a bad factual situation that there seems to be a law that would have addressed it but didn’t in hindsight,” Morris said. “But we can’t live in a world that’s perfectly safe. Period. To seek safety, at some point, individual freedom or liberty has to enter into that equation.”


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