The US Supreme Court held that taking DNA from those arrested for “serious” offenses is constitutional and is in the same vein as taking fingerprints and photos of arrestees. In Maryland v. King, the Defendant was arrested on a felony and a DNA swab of his mouth revealed he was the previously unknown assailant in a rape case 6 years earlier. He was eventually convicted of the rape charge. That Defendant challenged the constitutionality of his DNA being taken from him without consent pursuant to the 4th Amendment of the Constitution.

The Court held that the DNA swab was not a violation of the 4th Amendment because it was not intrusive as a cotton Q-tip was used to gather saliva from inside the cheek of the arrestee. Also, the DNA was used for the legitimate Government interest of identifying the arrestee so he could be properly housed in the jail based on his threat level which could be ascertained most accurately from DNA revealing his criminal past. The Court held that this legitimate Government interest outweighed the privacy rights of the individual. The Supreme Court limited collection of DNA samples to those arrested for “serious” offenses. The California DNA Collection Act limits collection to those arrested for felonies which seems to be in keeping with the Supreme Court decision.

Notably, the Supreme Court requires the destruction of DNA evidence if the person is not convicted of the offense and DNA evidence may not be entered into a national database unless a conviction occurs.

California courts require that the Defendant give DNA as part of a felony conviction and in Orange County many negotiated dispositions on misdemeanor cases result in the Defendant giving his DNA to the local Orange County DNA data base which may be searched by law enforcement agencies in the state and across the country.

Criminal Law Updates by the Law Offices of Orange County Defense Lawyer William W. Bruzzo (714) 547-4636

Related Articles

• Supreme Court Says Police Can Take DNA Swabs From Arrestees (baltimore.cbslocal.com)
• Police can take DNA swabs from arrestees (kvue.com)

On April 18, 2013, the United States Supreme Court made a ruling that directly affects Drunk Driving Cases in California and across the country. The Supreme Court case is Missouri v. Mcneely, 2013 DJDAR 4918. Previous to this court ruling it was generally held that if a driver suspected of driving under the influence of drugs or alcohol refused a chemical test then he could be forced to give blood without requiring a warrant from a judge. In its most extreme, the driver could actually be forcibly strapped to a chair and blood drawn from his body, all without a warrant. This meant that the officer involved in the arrest would make the decision on whether to conduct a “search” of the driver’s blood by piercing his skin to extract the blood.

It is well established that a search inside one’s body is a search protected under the 4th Amendment to the Constitution. As such, a warrant must issue from a judge to allow the search to occur. There are various exceptions to the warrant requirement to include if the person consents to be searched or if exigent circumstances exists. Exigent circumstances refers to a situation that requires an immediate search out of fear that the evidence may not be available if law enforcement has to wait for a warrant.

In drunk driving cases the exigent circumstance that commonly exist is the dissipation of alcohol (or drugs) from the blood of the suspect as time passes. There is no debate that the liver will eliminate alcohol from the suspect’s blood at about the rate of one drink an hour for a 175 lb man. So, the more time that passes between the time of driving and the blood test may cause law enforcement to lose evidence needed to make their case.

In the Mcneely case, the Supreme Court decided that from now on, the natural dissipation of alcohol from the blood is no longer an automatic exigent circumstance making a warrant unnecessary. Each case must be decided on its individual merit when deciding if a warrant should have been procured. The court noted that technology is such that a warrant could be issued by telephone and therefore relatively quickly without unduly compromising law enforcement’s ability to gather evidence. Until the Supreme Court’s decision, alcohol dissipating from blood was considered an exigent circumstance where no warrant was required in California. That is no longer the law.

Practically speaking however, this decision may not change how drunk driving cases are handled. Most people will probably still consent to a chemical test (blood or breath) because a refusal can lead to a 1 year license suspension by the DMV irrespective of what happens in court. To most people the license suspension is worse then a misdemeanor conviction for drunk driving, especially in far flung, car dependent Southern California. In order to accommodate the Supreme Court decision the county courts will probably designate judges to be on 24-hour call in order to evaluate whether a warrant should issue in a drunk driving case. In fact, Orange County already has a 24- hour judge on call for the purpose of deciding bail. While judges will certainly not be happy about having to deal with making a warrant decision at 3:00 am because a Newport Beach reveler drank too many and got in his car, it will probably be considered only a minor inconvenience in the end.

The outcome of this decision is being watched closely by those who are concerned with the treatment of illegal immigrants as well as other groups who are generally concerned with the treatment of Latinos by authorities in the United States. The fear these groups have is that individuals will be singled out by police for being Latino- something clearly unconstitutional. In addition, the argument is being made that it makes little sense for local and federal authorities to have overlapping jurisdiction.

However, now it appears there may be no one qualified to file an appeal since whoever does so must demonstrate they will experience some loss from the lower court decision. Normally, the Office of the California State Attorney General will bring the appeal on behalf of the voters but in this case both Governor Arnold Schwarzenegger and Attorney General Jerry Brown believe the federal court decision finding the ban unconstitutional is valid and will not appeal. Meanwhile supporters of the ban may be unable to demonstrate that they have suffered any loss except in a very general sense which will probably not be enough. So, while Proposition 8 supporters were hoping for a show down in the U.S. Supreme court and confident of an outcome favorable to them given the conservative bent of that court, it appears now they may never get the chance.

Legal Updates by the Law Offices of William W. Bruzzo (714) 547-4636

Everyone knows from the many cop shows on TV that once a person is arrested and before they can be questioned by police they must be read their Miranda rights. Miranda refers to the 1966 case Arizona v. Miranda where the U.S. Supreme Court decided that statements may not be used against a Defendant if he is not first informed of the right against self incrimination under the 5th Amendment. Those rights are specifically set out as the right to counsel, the right against self incrimination, the right to an attorney and the right to remain silent. On June 1, 2010 the U.S. Supreme Court decided to permit statements of a Defendant to be admitted as evidence even though the Defendant never agreed to waive his rights under Miranda.

In the case of Berghuis v. Thompkins, Mr. Thompkins was in police custody and being questioned about the death of an individual. The Police read him his Miranda rights but Mr. Thompkins never indicated whether he wanted to speak with them or if he was invoking his right to remain silent. Instead, he said largely nothing and the police asked him questions for three hours to which he did not respond until the very end of the interrogation when the officer asked: “Do you pray to God to forgive you for shooting that boy down?” To which the Defendant replied, “Yes.” That statement was used to convict him of murder. Notably, Mr. Thompkins declined to sign a form acknowledging that he understood his Miranda rights as well as never indicating whether he was choosing to speak to police. The court found that unless the Defendant explicitly says he is declining to speak with police, any confession may be used against him. Previously, it was thought that a waiver of one’s right had to be made clear by the Defendant. This decision pitted the liberal wing of the Supreme Court against the conservative wing in a 5-4 decision.