As a criminal defense attorney who practices in Los Angeles, I have successfully defended countless arrestees to stop criminal charges from being laid and, when charges exist, to secure an acquittal on all counts. The process to remove these innocent people’s DNA from California’s database is arduous and slow due to complex state rules for expungement. The California Supreme Court recently upheld the state law mandating DNA collection from arrestees. In doing so, the Court failed to properly consider the significant privacy costs this law has, especially for indigents and racial minorities.

People v. Buza involved a San Francisco man who challenged his conviction for refusing to provide a DNA sample after he was arrested. California law permits police to collect DNA from anyone arrested on suspicion of a felony. No procedural safeguards, such as a warrant or a judicial finding that there was sufficient cause for the arrest, exist. California stores arrestees’ DNA samples indefinitely, and allows DNA profiles to be searched continuously by local, state, and federal law enforcement agencies.

A lower court held that this law violates the privacy and search and seizure protections guaranteed under the California constitution. Like the U.S. Supreme Court’s 2013 opinion in Maryland v. King, the majority of the California Supreme Court in Buza accepted the government’s argument that a DNA sample is no different from a fingerprint and that the government’s interest in “identifying” an arrestee outweighs the arrestee’s right to privacy. The California Supreme Court’s decision allows the troubling DNA collection law to stand.

The California constitution enshrines the right to privacy, unlike the U.S. constitution. The Court’s reasons should have fleshed out how the unique constitutional status of the right to privacy in California impacts collection of arrestees’ DNA, rather than simply adopting the U.S. Supreme Court’s line of reasoning in King.

In my view, the California constitution bars collecting arrestees’ DNA. The constitutional right to privacy includes protecting our rights to privacy of our personal information, as well as our right to self-determination over our bodies. The majority opinion in Buza focuses on the somewhat minimal impact a cheek swab to obtain DNA has on bodily privacy, which misses the point. The state’s retention, processing, and ability to continually search individuals’ DNA samples is an incredibly serious invasion of an arrestee’s privacy. This is because, as Justice Cuellar wrote in his dissenting opinion:

A DNA sample stored by the state contains an arrestee’s entire genetic code – information that has the capacity to reveal the individual’s race, biological sex, ethnic background, familial relationships, behavioral characteristics, health status, genetic diseases, pre-disposition to certain traits, and even the propensity to engage in violent or criminal behavior.

In Buza, the defendant pleaded guilty to committing arson. The majority emphasized that its ruling is narrow and limited to defendants whose arrests were supported by probable cause. The Court wrote that someone else arrested in the future absent probable cause could have a valid as-applied challenge to the adequacy of the DNA Act’s expungement procedures, in addition to other remedies for unlawful arrest. Unfortunately, many innocent arrestees in California are indigent and cannot afford an attorney to help them apply to remove their DNA from the state database. The Court’s holding problematically ignores that most arrestees lack the resources and legal knowledge to mount such challenges, so their DNA samples will remain in the state system indefinitely.

DNA collection severely undermines people’s right to privacy on a massive scale. The state law authorizing DNA collection impacts tens of thousands of innocent Californians each year-nearly a third of 200,000-plus people arrested each year are never charged with or convicted of a felony, according to state records.

The privacy costs of a state DNA database that is designed to hold innocent people’s DNA profiles especially troubling for racial minorities. Felony arrests of African Americans disproportionately result in no charges or dropped charges, which means that innocent African Americans are disproportionately represented among the thousands of DNA profiles that the state has no legal basis for retaining. In my view, the law’s massive impact on privacy should have proved fatal under the California constitution.

Lawmakers should respond by reforming arrestee DNA collection law to at least provide for mandatory expungement in innocent cases.

Learn More SHARE