Advertisement

Every state has its own particular formula for collecting DNA from those accused of crimes. Some states only allow for cheek swabs once a person is convicted of violent felonies, while others take genetic samples of those merely arrested for misdemeanors. In between runs the gamut. A landmark U.S. Supreme Court case ruled in 2013 that Maryland could continue to collect from those arrested and charged with serious felonies, if probable cause was supplied.

Now California’s Supreme Court is mulling a similar, but different law in the Golden State: that anyone arrested for a felony must submit to a sample before a court appearance.

The voter-approved law was passed in 2004 and took effect in 2009—the same year that Mark Buza was arrested for setting a San Francisco police car on fire, but then refused to give a DNA sample. Buza was ultimately convicted of arson and served more than a year in state prison.

This week the seven justices of the state Supreme Court heard oral arguments in which Buza challenged his conviction and six-month sentence for the misdemeanor of refusing the DNA sample.

The San Francisco Chronicle reports the state’s highest court appears evenly split, with Justice Leondra Kruger being the potential swing vote.

Buza’s attorney J. Bradley O’Connell argued that California’s constitutional privacy right is more sweeping than Maryland’s—and that the state shouldn’t be allowed to “stockpile” information, according to the news account.

But Deputy Solicitor Michael Mongan countered that DNA was more accurate than fingerprinting, and that it could prove exculpatory to the innocent while providing an extra measure of public safety.

The decision could be complicated by the aforementioned U.S. Supreme Court decision Maryland v. King, according to the California proceedings. Chief Justice Tani Cantil-Sakauye pointed out during the Wednesday proceedings that the arson crime Buza was accused and convicted of would have allowed DNA collection at time of arrest in Maryland’s law.

“I’m not sure how you win,” the chief justice reportedly told Buza’s attorney.

State laws governing DNA collection of the accused have gradually evolved. As of an accounting compiled by the National Conference of State Legislatures in 2016, 30 states (and the federal government) have laws for genetic sampling of arrestees.

The states not collecting from arrestees at that time were: Hawaii, Washington, Oregon, Idaho, Montana, Wyoming, Nebraska, Iowa, Mississippi, Kentucky, Indiana, West Virginia, Georgia, Pennsylvania, New York, New Hampshire, Massachusetts, Rhode Island, Delaware and Maine, along with Washington D.C., Puerto Rico, Guam, and the rest of the U.S. territories.

The states that collected from all those arrested on felony charges were: Alabama, Alaska, California, Colorado, Kansas, Louisiana, Nevada, New Mexico, North Dakota, Ohio, South Carolina, South Dakota, Vermont and Wisconsin. 

Advertisement
Advertisement